일본의 재판원재판 실시현황과 개선논의에 대한 검토와 시사점

Abstract

In Japan, the Lay Judge System has received positive reviews, on the ground that it prevented undeserved convictions by realizing the concept of ‘reasonable doubt,’ and made it possible for sentencing to be affected by the sense of ordinary citizens. In some respects, however, the Japanese system has revealed lack of efficiency in terms of operation of the preparatory procedure for trial and the procedure in a public trial. Efficient and speedy operation of those procedures can be achieved through effective and meaningful preparation for the trial by the parties concerned. In both South Korea and Japan, it is somewhat doubtful whether attorneys, in criminal cases judged by the public participation system, are making sufficient professional efforts to help the jury understand the cases. In Japan, the efforts made by attorneys to prove the case or achieve trials that are easier to understand seem to be overshadowed by the prosecutors’ efforts to prove the defendant’s guilt. In South Korea, cases involving appraisals do not represent a serious issue partly due to the fact the court has the power to exclude appraisal evidences. With the number of such cases expected to increase, however, the South Korean trial system needs to adopt several improvements, which include: refrain from admitting written appraisals as evidences, virtually making it mandatory to question the appraiser, active request for multiple appraisals by the attorney, and cross-examination of those multiple appraisers. While it is necessary to revise the relevant laws to restrict appeals by prosecutors against outcomes of public participation trials, it is the author’s opinion that the prosecutors first need to respect the outcome of the public participation trial, and makes sure that the subsequent appeals proceed as ‘ex post facto review.’ The court should go beyond the Supreme Court’s recent decision that the appellate court should exercise caution in remanding the original decision, to render appeals from prosecutors virtually meaningless. Ever since enactment of the People’s Assessors Act, Japan has put substantial energy into the system that is unprecedented in the history of Japanese judicial system. Japan has been seeking a way to achieve trials that are easier to understand, by reviewing its substantial and procedural laws as well as its legal practices. The cooperative atmosphere between the three elements of the legal system is considered as one of the major achievements of the system, which provides highly meaningful implications for South Korea and its legal system as well.