국민참여재판제도의 몇 가지 개선점

Abstract

The criminal jury trial system has been enforced since January 1st, 2008 in order to "establish reliable judicial system by enhancing judicial democratic legitimacy and clarity". Its ultimate objective is to increase the reliability of judical law through judicial democratization. In the term 'judicial democratization', it implies the possibility of observation and control over the trial by citizen's direct participation and judgement which has long been the unique domain of the judges, rather than the democratization by citizen participation in the judicial system. Yet, the citizen engagement in the trial itself does not necessarily mean the technical observation and control. That is, the trial has to be comprehended by the citizens and the trial system has to be developed based upon them. Thereby, the change in the investigation and trial have to be followed in order for the realization of judicial democratization by the criminal jury trial system. In the U.S., England, Germany, France and Japan, which have adopted the jury trial, take different forms of systems. Yet, what they have in common as a ground of the system is criminal procedure principle and trial-centrism. Trial centrism is based on nation-centrism. Thereby, trial-centrism allows for the oral argument of the whole trial for the purpose of observation and control by the citizens and reach the ruling by concentrated court hearing by counting trial dates which is facilitated by the submitted evidence. Hence, trial-centrism is a fundamental principle of the citizen-oriented trial system. In pursuit of judicial democratization through trial-centric trials, change in the investigation is highly required. In other words, the investigation changes of the prosecution is called for as fact-finding person is shifted from the professional judge to the citizen. The prosecution has to convince the jurors without reasonable doubt for the burden of proof, and all the proofs has to be showed in the oral statement in the court which requires the change in the existing investigation practice. Thus, the prosecution has to protect evidential value of the evidence obtained in order to convince the jurors without reasonable doubt and the voluntariness of one's confession and oral statement at the court has to be assured as most of proofs take the form of testimony. The change in the investigation practice reflects the citizen's control over the investigation rights and legitimacy of national punishment authority, and judicial democritization by the assurance of human rights. Judicial democritization and investigation on the changes of fact-finding person, and changes in the investigation and realization of trial-centrism are the parameters of the successful establishment of the criminal jury trial system. Thus, this study regards the three notions as preconditions of the criminal jury trial system and analyzes and reviews how the preconditions are applied in the criminal jury trial system in Korea in order to suggest appropriate picture of the jury trial system which will be fully implemented in 2013.