국민참여재판에 따른 성폭력범죄 재판 운용의 실무적 개선방향에 관한 고찰 - 피고인의 국민참여재판을 받을 권리·피해자 이익의 보호·법관의 실체적 진실 발견 의무의 조화를 위하여 -

From observations on jury trials of rape cases, two challenges have been pointed out thus far. The first one is the danger of retraumatization, which also occurs in bench trials but is more severe in jury trials. The second challenge is the high possibility of judge-jury disagreement compared to jury trials of other kinds of crimes. Especially when we closely look at those cases where the jury and the judge-panel disagreed, there arises a reasonable suspicion that the verdicts of jury were influenced by the prejudgment and misconception towards the victim of the case. If we don't take a proper measure on this issue, jury trial might play a role of opening door of criminal procedure to invite the widely accepted "rape myth" under the name of "democratic legitimacy" and "common sense". Therefore, it is strongly requested to seek procedural improvement which is aimed to prevent 'rape myth' from entering the decision process of jurors, in order to ensure the right of the defendant to a jury trial, the ideal of establishing the substantial truth, and the interest of victim at the same time. There could be two types of ways for procedural improvement: i) debunking jurors misconceptions by providing relevant information and opportunity to reflect on their own prejudgment and preconceptions, and ii) excluding juror candidates who are obsessed with false conceptions and not willing to admit that they could be wrong. This article tried to suggest specific ways of improvement at the stage of i) voir dire, ii) preliminary instruction, iii) evidentiary process, iv) final instruction in order to achieve a fair trial for the defendant and the victim.