국민참여 裁判制度 시행과 人權擁護

「Civil Participation in Criminal Trials Act」(the Act) passed the National Assembly of Korea on April 30, 2007, and it comes to effect on Jan. 1, 2008. The Act introduces Civil participation system in serious criminal trials. The jury is selected randomly from a district area, and will decide the guilty/not guilty (sometimes after consultation with the court) in order to recommend its opinion to the court. Though the recommendation of the jury is not binding, the court must have regard to it, and must give reasons when the court returns a different verdict from the jury’s. In case of guilty, the jurors also give their opinion on the sentence of the accused individually, which is not binding. The new jury system is somewhat hybrid system between a pure jury system and a continental mixed jury system. In this sense, we can say the hybrid system is a kind of pilot system, in order to determine which system is appropriate for the Korean culture and legal background. As the author worked for the Presidential Committee on Judicial Reform, he was engaged in drafting the Act, and took a role in preparing and exercising mock jury trials. This paper explores the civil participation system from the standpoints of human rights. We can question whether the right to fair trial, right to trial by judge, right to remain silent, right to privacy, and right to equal protection are in conflict with the participation system. The author examines the meaning and the scope of each human right, considering decisions of the Constitutional Court of Korea. The participation system does not breach on the right to trial by judge, because the system still maintains the presiding role of the judge. In regard of fair trial, the participation system and new criminal code provides for admissibility of more hearsay evidences, so the new criminal code should be interpreted carefully. The privacy of jurors and potential jurors is crucial for the interests of the concerned and the fair trail as well. Right to counsel becomes more important under the participation system, so the Participation Act provides for court-appointed counsel to each defendant in juror-participated trials. In conclusion, the participation system is expected to enhance democratic legitimacy and credibility of the judiciary. Still the trials must be monitored and examined with scrutiny, and ordinary people, legal experts, judges, prosecutors, lawyers, and academics should cooperate closely in order to make the new system a success.