국민참여재판제도의 운영상 쟁점

On Feb. 12, 2008 the first civil participation trial was held in Daegu, on Feb. 18 the second in Chongju. The new Civil Participation in Criminal Trials Act, and revised Criminal Procedure code took effect on Jan. 1. The new civil participation system, which is similar to US jury system, but unique in some points. Jury verdicts are recommendatory to the judge, but when the judges don't want to follow the jury verdict, 연구논문they must give reasons to the defendant. After guilty verdict, jurors discuss the proper sentence with the judges to give their opinion. The guilty/not guilty verdict should be unanimous in principle. Where jurors cannot reach a unanimity, they should hear judge's opinion before the verdict by majority. In this sense, the new system is regarded as a korean version of the US jury system and German accesor system. And it could be called “trial with jury” rather than “trial by jury”. The new civil participation system must be a big challenge to the people and legal professionals, however, no one can deny that the new system is expected to increase the public confidence, reinforce the democratic legitimacy in the judiciary, and to have a positive influence on the people's attitude toward the justice system. As the author observed the first two civil participation trials in person, they looked successful. The jurors were very serious and eager to participate, judges were proficient in presiding the case and kind to jurors, prosecutors and defense lawyers were well prepared and persuasive in oral arguments. This paper explores some issues regarding the civil participation system. First, on jury selection process, it is most important to impanel a fair and impartial jury. The participation act provides many detailed regulations on the selection process. This paper touches disqualification rules and investigation questions. Secondly, a pre-trial process, where the jury is not attended, is understood to be inevitable to enable the trial with jury. The preparatory procedure must be administered with caution, in that it should not cover the matter on merit. It also should not endanger the trial-centered principle, and public trial. It is supposed to support the oral argument and hearing during the trial with the jury. Lastly, the new system did not introduce the bifurcation of guilty phase and sentencing phase. So, a serious problem can arise, when sentencing factors, such as criminal records, character, social position, etc of the defendant are made open to the jury at the beginning of the trial. It could give critical prejudice to the jury, and means a violation of due process of law and fair trial postulated in the Constitution. To avoid such an unconstitutional situation, the paper suggests that in such cases where sentencing factors might bias the jury, the court should decide to bifurcate the trial. Under the current law, the court has the authority to resume argument if necessary(Korean Criminal Procedure Code s. 305). Where a decision to bifurcation is rendered, only evidences on guilty matter should be submitted and examined at the first phase of the trial. After closing arguments by parties, the court should instruct the jury on the guilty/not guilty question. When the jury returns a guilty verdict, then the trial is resumed and sentencing evidences should be admissible in the hearing. The paper calls for implementation of the suggestions and discussion on a revision of the act in accordance with the suggestions.