현행 헌법상 배심제와 참심제의 도입에 관한 고찰
A Study on the Jury System and the Sch？ffengericht in the Korean Constitutional Law
홍석한, 김일환
초록
A Study on the Jury System and the Schffengericht in the Korean Constitutional Law Today, through the jury system and the schöffengericht, the democratic justice is being tried to be improved which let the people participate in the judicial process. Given the systems, however, being in effect in the other nations, are giving many suggestions for the domestic system, it is firstly requested to verify their constitutional coherency along with the necessity for the Korean society. Introducing the new system should come after the enough effort to solve the problems and necessities through the analysis of the theories and judicial cases related to the task and the constitutional explanation on them. Explaining the two controversial systems first, this article is to classify the existing pros and cons on the invitation of the systems and study the limitation and the proper way of introducing them on the statute. As long as it is legitimate to import them with no doubt of unconstitutionality it will be enough to enact or revise some laws, but if not, it will entail the amendment of the Constitution. On the matter, there is a divergence of opinion, one of which is for the jury system and against the schöffengericht, and the other of which is for both the systems. But since the concept of the 'judges' in the Constitution mean to be guaranteed the tenure and the position by the article 105 and 106 of the Constitution, it was not expected to let the people take part in the judicial process according to the Constitution and the systems are unconstitutional. Consequently, as the two controversial systems are to incur a great deal of changes over the whole judicial system, they can be engrafted only after the amendmnet in order to make it constitutional the people's participating in the judicial process.