국민의 사법참여 ― 무엇이 문제인가 ―

Abstract

The question of whether some form of lay participation in judicial decision- making should be adopted in Korea has recently been hotly debated in the wake of democratization process. The Judicial Reform Commission is known to be intent on recommending to the Chief Justice of the Supreme Court a certain form of lay participation institution for adoption in the Korean judiciary. By now the question seems to have come to an almost bygone conclusion so that the next issues of when to adopt what kind of lay participation alone are left for their final determination. It is only natural that the questions of on what ground such an institution is justified and of whether its adoption is rational respectively with one of the two known lay participation systems, that is, jury or assessor system, follows the questions just mentioned above. At least the following five elements of the matter should be considered evaluate its justification and rationality correctly. First of all, its constitutionality should be assessed. Since the Constitution of Korea provides for the people's right to trial by a judge qualified under the Constitution and the law(Article 27 Section 1), the question arises of whether a jury trial or a trial conducted with assessor judges meets the constitutional requirement or not. There exist answers both pro and con. Here an argument is made in favor of an affirmative answer with certain qualifications. Secondly, the question is of whether it is demanded in the name of democracy. Lay participation is definitely a democratic institution in that it is a history-proven bastion of citizen's freedom against oppression, an excellent educational institution teaching citizens their responsibilities and duties, and a citizen watch-dog institution against corruptions of professional judges. Thirdly, the question is of whether citizens are as capable of conducting judicial functions as professional judges with fact-finding in the case of jury and both fact-finding and application of law in the case of assessor judges. It is hard to provide a definite answer to the question but it is suggested as being functional in making aloof professional judges keep up with the common sense of everyday life. Fourthly, possible higher corruptibility of juries and lay judges than professionally trained judges is the matter of serious concern by many. Since this matter goes together with those institutions (change of venue, voir dire, challenge, criminal prosecution of bribery charges, etc.) that are designed for its control, it may not be as serious as one might think. Fifthly, various financial and social costs that must accompany lay participation institution tend to make one reluctant in introducing such an institution. Many Anglo-American scholars and practitioners also advise us not to introduce it out of their plenty costful experiences with jury system. After all, it is hard to determine one way or the other. But the present state of Korea democratization certainly demands it. On balance, an assessor system appears to be much less costly and requires much less accompanying changes in its introduction than jury system. Probably an assessor system will be adopted, although, it may be too early to predict.