「국민의 형사재판 참여에 관한 법률」의 개정논의에 대한 헌법적 고찰

Abstract

On January 1, 2008, the Act on Citizen Participation in Criminal Trials was implemented. The purpose of this system is to ensure the fairness and transparency of the judicial process by allowing citizens to participate directly in the judicial process and ultimately to secure public confidence in the judicial system. Initially, we planed to conduct a pilot for 5 years and then finally establish an appropriate system for us. However, even though this law has been in effect for more than 10 years, the content is still no different from when it was introduced. The main reason for the lack of meaningful improvement is that the efforts to prepare the final form was made, but these efforts have only added to controversy and have not yielded fruit. This paper summarizes major problems of the system revealed in the process of discussing with the amendments of the Act on Citizen Participation in Criminal Trials that are proposed by the Citizen Participation in Criminal Trials Council and the Ministry of Justice, as well as the amendment currently pending in the National Assembly. Also, the Constitutional Limits and Possibilities that should be applied to solve the problems are presented and then the Constitutional foundation that must be applied to improve the system is suggested. In the discussion of the amendment, first, the scope of the Eligible Cases, the enforcement of the participatory trial by the court, and the reason and procedure of the decision not to proceed to a participatory trial by court are problems in relation to the initiation of the participatory trial. Next, when a unanimous verdict of guilty or not guilty can not returned, whether it can be covered by qualified majority is a problem regarding the way of verdict. Furthermore, Furthermore, it is controversial whether the court's obligation to respect the jury's verdict is to be defined, and whether to allow exceptions for such an obligation. Finally, whether or not to limit appeals for participatory trials is also an issue. In order to solve the above problems, it is important to distinguish between the contents that can be in introduced just by changing the Act and the contents that must be introduced with the amendment of the Constitution. The Korean Constitution sets on its own the judge’s characteristics like the independence on trial, the term of the office, retirement system, and the security of status while guaranteeing the right to be tried by judges qualified under the Constitution and the Act. Therefore, the above-mentioned problems should be solved by maximizing the principles of the Constitution and the cause of the Act on Citizen Participation in Criminal Trials within a range that it does not violate the specific and direct constitutional provisions on the judge and the right to be tried by judges qualified under the Constitution and the Act.