국민참여재판의 배제제도에 관한 고찰 ― 일본의 재판원재판제도와 관련하여 ―

Ten years have passed since the Citizen Participation in Criminal Trials was enforced to increase the democratic legitimacy and credibility of jurisdiction. Adding further to the accomplishments that have been acquired so far from the Citizen Participation in Criminal Trials requires the improvement of a system in pursuit of a quantitative increase of trials participated by citizens. One essential factor is to change the principle of request by the accused and the exclusion decision made by the court. This article reviews the Saiban-in (Lay Judge) System implemented in Japan to find out how legislative improvement of the Citizen Participation in Criminal Trials can be accomplished from the viewpoint of the exclusion system. The methods for improvements are described below. First, the reasons specified in Article 9, Paragraph 1, Subparagraphs 2-4 of the current Act on Citizen Participation in Criminal Trials need to be deleted, and a significant procedural delay should be stipulated. Second, an exclusive decision panel devoted to cases of exclusion requests should be newly established, and a reflection of court opinions in charge of the Citizen Participation in Criminal Trials should be prepared. Third, the reason specified in Subparagraph 3 should also be deleted with the premise of settling a system for protecting the victims of sexual crimes as well as its practices. Fourth, the right of choice and the right of withdrawal based on the principle of request by the Accused should be adjusted, and the reasons of transfer for ordinary proceedings should also be modified. Such systemic improvements must begin with the consensus that the Citizen Participation in Criminal Trials is a part of the judicial system.