현행 국민참여재판제도의 쟁점

It has been six years since the System of Citizen Participation Criminal Trial has been adopted in an attempt to establish reliable judicial system by enhancing judicial democratic legitimacy and clarity in 2008. The complete format and structure were supposed to be established during the trial period over first five years since the adoption, however, it is still in progress and the recent case on the violation of election law ignited the debate on the System of Citizen Participation Criminal Trial. In particular, ‘Nakkomsu’ and ‘Ahn Do Hyun’ cases, considered politically sensitive, have garnered considerable attention from the mass media so that it may be difficult to expect fair verdict because of the possible prejudices by jury. Further, it has been argued that the Citizen Participation Criminal Trial is not appropriate for politically sensitive cases and they should not be subject to the Citizen Participation Criminal Trial because jury’s political orientation or personal background may hinder their fair decision making. Under existing law, the Citizen Participation Criminal Trial is conducted only if it is requested by defendant. Thus, it is likely to infringe on the defendant’s rights of the request for the Citizen Participation Criminal Trial if the Citizen Participation Criminal Trial is not allowed despite the request from the defendant. For the two cases as mentioned above, there was no exclusion decision by the court and it can be elicited that the court found it appropriate to conduct the Citizen Participation Criminal Trial for the cases. The limitations of existing jury system, particularly those that are highlighted in ‘Nakkomsu’ and ‘Ahn Do Hyun’ cases include the scope of cases, composition of jury, and method of verdict. First, it is argued that the political cases that draw high levels of attention, as seen in ‘Nakkomsu’ and ‘Ahn Do Hyun’ should be excluded from the Citizen Participation Criminal Trial. Second, the composition of jury should be reconsidered when there is a possibility of unfair verdict due to political orientation or emotional appeal. Lastly, the unanimous decision is more adequate for a criminal trial than majority vote which facilitates judgment in a civil trial. Further, a presiding judge should not be bounded by verdict by jury if it were affected by public opinion. This study seeks to delve into the limitations of the Citizen Participation Criminal Trial and provide improving strategies.