In 376, the Roman Empire issued an imperial decree declaring that no one should judge their own case or interpret the law on their own behalf. In the 500s, the Corpus Juris Civilis was compiled, stating explicitly that it is improper for anyone to serve as judge in their own affairs. The principle carried through antiquity and the Middle Ages into the rule of law in modern Europe. Edward Coke, the English jurist and statesman who served as chief justice in the 1600s, drew particular attention by declaring that not even the king could personally adjudicate disputes between himself and his subjects. The Latin maxim "Nemo iudex in causa sua" — no one can be a judge in their own case — remains accepted today as an unwritten modern norm in major countries around the world.
Korea's judicial system has embraced the same principle through judicial recusal, which bars a judge from handling a case in which they have a special relationship. The grounds for recusal are set out in the Constitutional Court Act and in the civil and criminal procedure codes. A Constitutional Court justice, for example, is excluded from a panel if the justice is a party to the case — typically a plaintiff or defendant — or the spouse of one. The same applies in civil cases. A judge who is the victim in a criminal case is likewise recused from it.
The head-on clash between President Lee Jae-myung and Chief Justice Jo Hee-de over the nomination of a new Supreme Court justice has raised fresh questions about the recusal system meant to ensure fair trials. The Supreme Court Justice Nomination Recommendation Committee had put forward four candidates to succeed former Justice Roh Tae-ak, whose term ended in March. Among them, Jo is said to have raised conflict-of-interest concerns about Kim Min-ki, a judge at the Seoul High Court, who was reportedly the Presidential Office's preferred choice. Kim's spouse is a sitting Constitutional Court justice. If the couple were to serve simultaneously as a Supreme Court justice and a Constitutional Court justice, the husband could end up handling at the Constitutional Court a case his wife had ruled on at the Supreme Court. Jo ultimately nominated Son Bong-gi, a senior judge, rather than Kim. President Lee decided not to send Son's confirmation request to the National Assembly and asked Jo to nominate another candidate from the list, but the chief justice refused.
The opposition People Power Party argued that if Kim were elevated to the Supreme Court, recusal would have to be weighed in every case connected to her spouse. Under current law, however, he might not be recused. Unlike plaintiffs, defendants and prosecutors, a justice is not treated as a party to a case under the Constitutional Court Act or the civil and criminal procedure codes — the standard that triggers recusal. This is an institutional gap that needs to be closed. A plaintiff or defendant may file a motion to disqualify a judge on the grounds that a fair hearing cannot be expected, but whether the panel would grant it is uncertain.
Jo bears no small share of responsibility for the nomination standoff. He put off naming a successor for nearly six months after Roh's retirement, moving only belatedly in August. And unlike his predecessors, who met the president for consultations beforehand, he broke with custom by submitting the nomination in writing, deepening the ruling bloc's resentment. Yet it was the ruling Democratic Party of Korea that first widened the rift with the judiciary by unilaterally reshaping the judicial system. The party destabilized the existing three-tier court structure by introducing a constitutional complaint mechanism that amounts to a fourth tier. It also expanded the Supreme Court bench by 12 seats, from 14 to 26, which will allow President Lee to appoint as many as 22 justices during his term. Given that, Jo could hardly avoid worrying about damage to judicial independence.
The ruling party is casting the episode as a judicial coup. It has even named Jo as a witness for the National Assembly's parliamentary audit of the Supreme Court on Oct. 6. To the public, this may look like a judiciary being squeezed between a powerful Presidential Office and a dominant ruling party. Hard-line supporters may applaud, but moderates will turn away. There appears to be little to gain for the Presidential Office and the ruling party — the living power — in fighting a chief justice with barely eight months left in his term. Resolving the tangled standoff through smooth consultation and coordination among the legislative, executive and judicial branches would be the way for those in power to establish leadership. The answer to the turmoil over the Supreme Court nomination lies in recalling the norm that no one can be a judge in their own case, and in working toward a fair and transparent judicial system.
