국민참여재판 배제제도의 문제점과 개선방안

Abstract

This year marks the 14th anniversary of the first Korean Jury Trials held in 2008. The purpose, which is to engage in the judiciary and democratic legitimacy of the trial through the participation of the general public, seems to accomplish its goal smoothly. The Korean Jury Trials, however, confronts with crucial problems that are against the primary blueprint as initiating the system. This study presents the basis for legislative improvement to revitalize the Korean Jury Trials through academic discussions and reviews the legislative activities of the National Assembly to re-establish the system of the public participation trials. In addition, this study indicates the increased exclusion rate of the Korean Jury Trials as a major cause of the crisis of the Korean Jury Trials and analyses methods to improve the exclusion system of the Korean Jury Trials. The measures to enhance the exclusion system suggested in this study are as follows. First, Article 9 (1) of the Act On Citizen Participation In Criminal Trials shall be removed. Second, in the case of exclusion under Article 9(1) 3 of the Act On Citizen Participation In Criminal Trials, the existence of Article 9 (1) 3 itself is extremely burdensome for judges to conduct the Korean Jury Trials through discretionary exercise, and it is obvious the validity to abolish subparagraph 3. Victims of sex offenses, moreover, should be relieved of the burden of carrying out the Korean Jury Trials through the proposed victim protection system. Third, in the case of Article 9 (1) 4 of the Act On Citizen Participation In Criminal Trials, it proposes to eliminate the general nature of subparagraph 4 and to list them in detail. Not only does this study argue for the deletion of subparagraph 4, but also it advances to add cases, in which additional prosecutions are expected concerning that the defendant’s right to a swift trial will be violated due to significant delays in procedures. The specific reasons for the enumeration, however, should be revised according to the circumstances of the Korean Jury Trials in the future. Forth, as a way to improve the exclusion system by applying objective and unified exclusion decision criteria, this study suggests a method of establishing separate exclusive decision panels where determine whether or not to be excluded, instead of the court of a lawsuit.