Retirement Speech

Justice Kim, Jae Hyung

Main Hall of the Supreme Court

Seoul, Korea

September 2, 2022

Honorable Chief Justice, Justices, and Members of the Judiciary:

As summer fades away, we feel the crispness of autumn in the air. I am grateful to you all for arranging this event to mark the end of my tenure as a justice.

Looking back, the past six years were event-filled not only in and outside the judiciary but also at home and abroad. Our nation was gripped by power-abuse scandals of the administration and the judiciary. The COVID-19 pandemic, which began in early 2020, has caused lifestyle and behavioral changes for all humanity. Despite these turbulent times, I am pleased that I was able to steadfastly complete my tenure as a justice. I appreciate all of your support and encouragement, which helped me focus on my daily work in the court.

From the very first day of my inauguration as a justice six years ago, I prepared for the Justices’ Conference, reading memoranda drafted by research judges. Immediately following the conference, I had to gear myself up for the en banc session. Thereafter, my daily work routines revolved around the Small Bench session held twice a month and the en banc bench once a month. The daily pattern of preparing for the Justices’ Conference, drafting judgments, rendering court decisions, and making decisions on various other issues continued throughout my tenure. Even this week, the last week before my retirement, I rendered decisions for both the en banc bench and Small Bench cases. Some might say that justices enjoy the pleasure of being in this position only for the first half of their inauguration day—and then go through a stale time for the rest of their tenure agonizing over cases. However, I was committed to finding my job of conducting trials and writing judgments both pleasing and rewarding.

From the very beginning of my tenure as a justice, I tried to think thoroughly on every issue, no matter how inconsequential they might appear. I strived to reconsider issues from a different perspective de novo. I endeavored to tackle the issues head-on without deflecting or holding them off. I tried to face up to the essence of each issue at hand and make a right judgment based on such endeavors.

The process of making decisions on difficult issues in and of itself is always a challenge as it exposes one’s limits. There were nights that I had restless sleep worrying about whether the judgment I wrote or my opinion might have been erroneous in some ways. I sometimes pondered about whether to render the decision or not. But, still, I was able to move forward step-by-step by sharing opinions with my colleague justices and making modest revisions to my judgment.

These days, issues that more legitimately belong to the legislative or political realm are frequently appearing before the court. It is my view that the judiciary should not and cannot tackle all the issues that should be resolved through the process of legislation. However, it is true that the boundary between the legislative and the judiciary is unsettled. Neither branch of the government has an absolute superiority over the other. They can be likened to wheels of a wagon as both branches of the government seek to achieve the common goal of justice. Moreover, there are some instances where issues that should be resolved through legislation in the National Assembly were brought to a court because proper legislation was not enacted at the right time. Those unnecessary lawsuits often cause a waste in terms of social cost. As a legislative solution is mainly intended to regulate issues that might arise in the future, oftentimes legislation may not function as an appropriate tool to resolve the issues of controversy that are brought before a court. Of course, courts should make it clear that they cannot resolve those issues that cannot be solved based on construction and application of the law. However, I avoided simply shifting the responsibility of resolving such issues onto the legislature. Rather, I mulled over whether the issue could be resolved through judicial means.

While I had studied and lectured on the Korean Civil Code as a legal scholar, I dealt with diverse types of cases not confined to civil cases as a justice. I sometimes handled cases in a way that I never had imagined before. Oftentimes, I could resolve issues by employing the knowledge I gained through years of studying law as a legal scholar. As our legal systems have become divided into various specialized areas, each legal field possesses its own uniqueness. However, the root and the underlying principles of laws are intertwined. We should not turn a blind eye to the development of disparate legal fields merely by zooming in on their respective sui generis peculiarities. Rather, we should proceed with conducting trials always mindful of uniformity of the entire legal order.

Our society has a keen interest in observing diversification when it comes to the composition of the Supreme Court. However, it is not desirable to characterize the justices and sort them into either a conservative or a liberal bloc. When judges become conscious of conservative or liberal ideologies in going about their professional roles and responsibilities, an adverse impact might be effected thereby on the judges’ declarations of what the law and justice are or ought to be. Judges must deliberate on the meaning of the legal text chosen by legislators. Judges must consider various factors that may affect interpretation of the law, including the purpose of the legislation. If necessary, judges should strive to reach a right conclusion in light of the entire legal order, including the Constitution. Frankly speaking, I am neither a conservative nor a liberal. I am not a moderate, either. I tried not to take sides between judicial activism and judicial restraint. I still hold faith in legal rationality. I rendered each decision by reviewing various opinions, to the extent attainable by my utmost efforts.

I aspired to make gradual changes not only to the contents of my decision but also to the formality or system of arriving at a decision. I strived to make my decision accurate and concise to show the substantive rationale behind the decision. In this way, I believe we can improve the court’s capacity of conducting trials through in-depth and extensive communication with parties in dispute, lower-court judges, legal academia, and the legal community, not to mention the public. As is always the case, turning a plan into action is not an easy feat to come by. I nevertheless hope, at least, that there were some modest improvements.

Fellow research judges: I enjoyed every moment I spent with all of you. You should be proud of yourselves that your outstanding capacity and qualification as research judges have made meaningful contributions to the Supreme Court in handling its enormous workload. Memories of conversing with you on the memoranda and opinions drawn up by you will live on for a long time to come. My goal was achieving gradual improvements by sharing with you the opinions I revised and asking for your counter-comments. I hope that you will continue to maintain today’s enthusiasm, bravery, and sensitivity.

Honorable members of the judiciary: Our society always takes a keen interest in and keeps an eye on how the Supreme Court handles cases. I am aware of the voice of criticism directed at the system of “discontinuation of trials” being operated by the Supreme Court. I am also aware of the public’s expectations and concerns regarding the en banc session of the Court.

Going forward, the Supreme Court should proceed in a direction that focuses on important cases and renders meaningful decisions after spending a sufficient amount of time in deliberation. To help facilitate the Supreme Court’s swift and fair handling of cases, as well as to augument en banc sessions and public oral arguments, we will need dedicated efforts from all members of the Supreme Court. More fundamentally, however, overall improvements to the system of appeals to the Supreme Court should proceed. I hope such improvements can be effected based on a sincere discussion of how the Court should move forward.

Publius Juventius Celsus, the ancient Roman jurist, once said, “Jus est ars boni et aequi.” (“Law is the art of the good and the equitable.”) Jurists live their lives ruminating on what the law and justice represent, rather than trying to fit the cases that await their decision into a given frame. I think this is where the source of occupational self-esteem of jurists can be ascertained.

In my inauguration speech, I promised I would be committed to lending my support, however modest it may be, to realize a society where everyone enjoys dignity and value as human beings. Once again, I would like to thank the chief justice, my colleague justices, the research judges, my office staff, and all the judges and the staff of the Supreme Court for all your encouragement and support, which helped me strengthen my first determination as a justice and carry out my job to this day. I wish everyone good health and the best of luck. Thank you very much.