판사와 변호인 간 사회적 자본이 판결에 미치는 영향 연구

• 영문명: Defenders' Social Capital with Judges and Legal Decision-making
• 발행기관: 한국형사정책학회
• 저자명: 이지은(Ji eun Lee) 홍석민(Seok min Hong)
• 간행물 정보: 『형사정책』刑事政策 第26卷 第3號, 137~164쪽, 전체 28쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2014.12.30

영문 초록

This study has demonstrated that a defender's social capital is associated with a judge's legal decision-making and attempted to explain how this phenomenon can be explained from the perspective of social capital theory. In order to explore whether the social relationship between defenders and judges leads to more favourable judgements, quantitative methodology was employed. Five hundred and ninety four criminal cases were collected from five district courts in Seoul. The outcomes demonstrate that the social capital possessed by a defender is associated with the judge's legal decision; offenders represented by a defender who has a work network with the judge are more likely to be acquitted and less likely to be incarcerated than those represented by other defenders. On the other hand, other networks, such as university networks and the Judicial Research and Training Institute(JRTI) network, influence neither the conviction rate nor the detention rate. Regarding sentence severity, the sentencing decisions were unaffected by any of the social capital of the defenders, apart from the influence of the JTRI network, but more research is required before a firm conclusion can be reached on this point due to the insufficient number of cases from the JRTI network used in this study. Textual analysis of the not guilty cases showed that the conviction decision, especially the decision-making regarding factual issues, is largely left to the judge's discretion, with vague grounds provided for the not guilty verdict. An examination of the reasons for probation also demonstrates how detention decisions lie within a judge's discretion; a quarter of the probation cases did not provide the reasons why the probation was granted, while some of the reasons presented in the other cases were also problematic. On the other hand, regarding sentencing severity, a relatively high number of constraints, such as the sentence guideline and the prosecutor's demand for punishment for the accused, imposed on a judge seem to deter differential sentencing based on the social network between the judge and defender. This phenomenon, in which an incumbent judge make a favourable judgement towards offenders represented by a former judge, can be attributed to the judge's prejudice that a former judge will be fairer, but this study suggests another possible reason; an invisible tie between incumbent judges and former judges. If judges keep making favourable judgements toward offenders represented by a former judge, this repeated tendency may form a kind of norm. Then the judges can also benefit from this norm formed in the society of incumbent judges and former judges when they begin practising as a lawyer after retiring as a judge. Therefore, social capital theory suggests that this phenomenon is not simply caused by a judge's prejudice, indicating that a judge also benefits from this relationship in which he or she gives a former judge's client a favourable judgement. Suggested are practical implications based upon the result of the study.

목차

Ⅰ. 서론

Ⅱ. 이론적 배경

Ⅲ. 연구대상 및 방법

Ⅳ. 연구 결과에 대한 논의

Ⅴ. 결론 및 향후 연구 제언

참고문헌

키워드

사회적 자본 법적 의사 결정 전관예우 불공정한 판결 사법제도개혁 social capital legal decision-making biased judgement judicial reform