일본 피해자참가제도 시행 7년의 운영 성과와 그 시사점

Abstract

In December 2008, Japan introduced a victim participation system that allows the victim of crime to participate in criminal procedures to examine witnesses, to examine the defendant, as well as to state opinions as a pleading. As a result of analyzing the application of the past seven years, it is noted that the system is operated smoothly to the basic purpose. In 2011, The Korean government made a revised bill of the Criminal Procedure Law(The government proposal of 2011) based on the introduction of a victim participation system modeled on the Japanese system. However, it has been abandoned without any proper discussion. Yet, there is a growing need to introduce a victim participation system as soon as possible in view of the increasing demand of the protection of victims by society. When instituting a new victim participation system, it is necessary to analyze the operation outcome of Japan and refer to it. In this regard, the following points should be considered when introducing the victim participation system. First, I suggest the target crime be more widely accepted than the government proposal of 2011. In particular, victims of traffic crime needs to be included in view of the fact that they are eager to take part in. Second, the lawyer system for participating victim should be established and the victim who is lacking in self-sufficiency can be assisted by the court-appointed defence attorney for the participating victims. Third, in the light of the Japanese practice of allowing almost 99% of the victims to participate, the application for participation should be made to the prosecutor as in the case of the government bill of 2011. Moreover, it is required to guarantee the right to state an opinion against the prosecutor’s exercise of discretion and impose the duty of explanation on the prosecutor. Lastly, I propose the strengthened rights for the victim participant as follows: the right to attend on pre-trial date, the right to examine witnesses, the right to examine the defendant regarding the criminal facts as well as the circumstantial facts, and the right to state opinions as a pleading. Furthermore, it is necessary to authorize the right to request evidence or the right of appeal.