국민참여재판의 대상사건과 실시요건에 관한 검토- 국민사법참여위원회안과 법무부안의 비교검토를 중심으로

Abstract

A committee for citizens' participation in judical system formed a revised bill based on the results and problems of civil participation in criminal trial that has been enforced since 2008. The Department of Justice, however, also set out on amendment task so that a different bill from the Committee's one is currently pending at the National Assembly. According to the Department of Justice's new bill, election criminal is excluded from the eligible cases of participatory trial and it is permitted for prosecutor to be concerned with opening or exclusion of the trial. Such a revision shall face to the criticism that it is contrary to the aim of Article 5 of Act on the Civil Participation in a Criminal Trial and Public official Election according to which election criminal shall be under the jurisdiction of the collegiate division of the district court or its branch. Furthermore, it disregards the function of participatory trial as a judicial control system. In addition, the Department of Justice's new bill adds a cause of exclusion so that a court may decide not to proceed to a participatory trial, "if it is considered, when proceed to a participatory trial, that there is apprehension to bring about a partial result due to a nature of crime or any other cause or advanced legal judgement is needed." It is apprehended that this article may be abused in order to constrict unjustly the right of defendant. In brief, the Department of Justice's revised bill is evaluated as a degenerate one as compared with current law. That is, it increases the possibility to constraint the right of defendant and to violate the aim of civil participation in criminal trial. Deliberate review on this bill is required at the National Assembly.