국민참여재판의 재판중계에 대한 논의 - 미국과 한국의 재판중계에 대한 비교법적 고찰 -

As Korea has the principle of having its courts open to the public, the related issue is whether trials should be allowed to be broadcast. The justification of trial broadcasting can be found in the public right to know and the freedom of the press that are based upon the constitutional values in both Korea and the U.S. The realization of the right to know should be premised on the freedom of the press because it is essential to have the freedom of the press in place for the purpose of assuring that the public receive the objective and fair information. The trial broadcasting can be justified because it is in line with the open court principle. The open court principle allows the courts to be open to the public directly whereas the trial broadcasting is an indirect means of opening the courts to the public. On the other hand, notwithstanding the public interest gained from trial broadcasting, the downside of trial broadcasting is a possible interference with the privacy and personal rights of the defendant. Also, the trial broadcasting is against the right to enjoy the presumption of innocence which is constitutionally guaranteed to the criminal defendant. However, since a criminal defendant can be a subject of the public interest and thus considered as a 'public figure,' he can be differentiated from the parties in civil trials who have private interests. It is not just to totally prohibit trial broadcasting only for the reason of privacy interference; and the determination of trial broadcasting should be based on the comparative analysis between the privacy issue and the public interests as well as the benefits from protecting the right to know and the freedom of the press. This paper discusses the issue of whether trial broadcasting should be allowed in jury trials under the premises that trial broadcasting can be justified in Korea. First, the broadcasting of jury trials can be considered as the extended form of public participation in the judiciary. The fact that the general public can watch the jury trials broadcast through the media is tantamount to the indirect participation in the judicial functions by the public. As the public right to know can be satisfied by guaranteeing the freedom of the press, the same right can be satisfied in a greater extent by allowing the broadcasting of jury trials. Before allowing the broadcasting of a jury trial, a court should consider whether it is necessary to guarantee the public right to know due to the existence of the overwhelming degrees of public concern and public interest in that trial. Also, the court should consider the degree of disadvantages against the defendant's privacy right and the right to receive a fair trial in comparison with the degree of public interest gained from the trial broadcasting. At the same time, the court should consider whether the broadcasting of a jury trial can contribute to the effective fact-findings due to the transparency of judicial procedures and the consequential fairness. The other matters to be considered in terms of jury trial broadcasting are the pretrial notice of trial broadcasting, the risks of media exposure during trial and of jurors' identification being exposed, and the possibility of jury sequestration.