국민참여재판에서 배심원 평결의 방식과 효력의 바람직한 개선방안

Abstract

The Act on Citizen Participation in Criminal Trials has made it possible for ordinary citizens to participate directly in the trial. The Participatory Trial began with the aim of enhancing the democratic legitimacy of the judiciary and restoring public confidence in it. However, the system was not introduced in the form that was completed from the beginning. There was already a plan to set up the system gradually, and therefore, a lot of efforts and discussions were made to prepare the improvement plan of the Participatory Trial system through the trial operation period. However, the controversy throughout the Participatory Trial process has lasted now for ten years and many problems remain unresolved. This paper analyzes the problems related to the Participatory Trial, especially the way of decision making of the jury and the effect of the verdict. First, we make a generalization of the contents and the features of the way of decision making of the jury and the effect of the verdict in the Act on Citizen Participation in Criminal Trials. Next, we summarize the process of efforts to improve such contents, and analyze the main issues and the current discussions in academia. Finally, the constitutional criteria that should be applied in the improving the way of decision making of the jury and the effect of the verdict are suggested, and then private opinions for improvement are provided for each issue. The Participatory Trial is an institution that has a very important meaning in terms of democracy and the rule of law, but it can not be tolerated to go beyond each provisions of the Constitution. Therefore, it is most important to carefully and strategically organize the system so as to minimize the possibilities of unconstitutionality as well as to maximize the effect of the Participatory Trial in our realistic conditions. In this respect, when the jury can not arrive at a unanimous decision, it is reasonable to remove the mandatory intervention of the judge and admit the decision by qualified majority. In addition, if a verdict is not reached by qualified majority, efforts should be made so that a verdict can be returned as soon as possible, rather than invalidating the jury's deliberation and verdict. On the other hand, regarding the effect of the verdict, it is necessary to calm the controversy on unconstitutionality along with seeking the way for the Participatory Trial to achieve substantial results. Thus, it is reasonable to have a mechanism to clarify the obligation to respect instead of legal binding effect on the judge and to provide institutional supplements for the de facto binding effect. However, the exception to the obligation to respect the verdict should be defined as clearly as possible so that arbitrary judgment of the court could not involved.