국민참여재판의 개시요건에 대한 고찰

The participatory trial system, which allows ordinary citizens to participate in thetrial, is going beyond 10 years. Initially, the participatory trial system was intendedto establish a final model after piloting for five years, but it still does not have thefinal form because there are a number of issues throughout the proceedings of theparticipatory trial. This paper summarizes the issues related to the requirements tostart the participatory trial and suggests desirable ways to improve the system fromthe viewpoint of effectiveness and constitutional norms. The main issues with respect to the requirements for the initiation of aparticipatory trial can be summarized as follows: The scope of the eligible cases. Whether to respect the defendant’s intentions or to force the participatory trial to beinitiated by the court or law. Whether to increase or decrease the grounds for thedecision to exclude the participatory trial by the court. There are two criteria thatshould be applied when establishing the requirements for the initiation of participatorytrial. The specific contents of the system should not violate the Constitution and theeffectiveness of the system should be maximized based on the experience ofparticipatory trial system. In this respect, the scope of the eligible cases of participatory trial should bemaintained to include cases falling under the jurisdiction of a collegiate panel underArticle 32 (1) of the Court Organization Act just like now to include election crimesor economic crimes. Next, regarding the issue of reflecting the defendant’s intentionsin deciding whether to initiate a participatory trial or not, it is the most reasonable way that all eligible cases should be conducted in the form of participatory trialunless the defendant clearly expresses his opposition. However, the defendant’sfrequent opposition may break the purpose of the participatory trial system andviolate the right of the people to participate in the participatory trial as juror. Therefore, it is necessary to make the participatory trial mandatory for certain crimes. Finally, the situation in which the courts have been overly decided to exclude theparticipatory trial and the participatory trials are not fully activated should also bechanged. So, the abstract exclusionary grounds of Article 9 (1) 4 of the Act onCitizen Participation in Criminal Trials should be replaced with concrete and clear reasons.