배심원 양형에 관한 쟁점 검토 : 국민참여재판의 개선방안을 중심으로

Globally, jury sentencing is not common practice. In 2008, Korea introduced a form of this as Citizen Participation Procedure in criminal trials. According to the Act, the jury not only renders a guilty or not guilty verdict but also an opinion on the sentence. There have been many debates as to the merits of jury sentencing. Although jury sentencing is a good way for the people to disclose their opinion in regard to sentencing, jury sentencing needs to be closely monitored because of the inherent drawbacks. According to the current act, jury participation is formative wherein the jury provides an advisory opinion to the judge in regard to sentencing without rendering a verdict. In addition, most citizen participation trials in Korea last only one or two days with no separation between the guilty or not-guilty decision procedure and the sentencing hearing procedure. It is unreasonable to expect juries to render a verdict that has been well thought out along with an opinion on sentencing in such a short period of time. In addition the unitary structure results in various problems, one of which is that it allows some evidence regarding sentencing to be presented during the trial which can prejudice the jury in their decision. Deciding whether certain aggravating or mitigating factors exist while calculating the gravity of such factors is a highly complicated matter perforce calling for a separate sentencing hearing procedure. It is now timely to decide whether jury sentencing should be abolished or to reenforce its sentencing verdict with legal effect. In addressing the need for objective and just sentencing, Korea established a sentencing commission and a sentencing guidelines system. Achieving sentencing goals by way of sentencing guidelines is more effective in terms of efficacy and objectivity. However, if jury sentencing is to remain in place, it becomes necessary to ensure the jury's power of rendering verdicts on sentencing and to establish a separate sentencing hearing procedure. In cases where there is a guilty plea, jury sentencing should be restricted to only the cases where a decision must be made as to whether capital punishment or life imprisonment is suitable. Furthermore, jury sentencing waiver procedure should be introduced in order to reduce the number of cases going to jury trial and sufficient sentencing information should be provided to jurors to abolish unwarranted disparity.