국민참여재판에서 피고인의 입증 부담 방안 - 2020. 1. 9. 선고 대법원 2019도10140 판결 평석 -

Korean Criminal Procedure Law Article 266-11 regulates that any document for a criminal defendant concerning legal or factual matters such as non-existence at the scene, insanity, or mental weakness, should be disclosed at a trial or a preparatory hearing. Especially sentences in Korean Participatory Trial would’nt be consistent with the verdict. Thus, this paper researches on how to reduce the error of a verdict delivered in our participatory criminal justice system. Before delivering a verdict, the defendant could submit documents to the court for a verdict of not guilty. It would be appropriate in cases for the benefit or necessity of the defendant. The author suggests de lege lata et de lege ferenda to clarify the burden of proof theory for a criminal defendant. The summery of this paper is as follows : Firstly, he proposes a new approach to the burden of proof on the part of the defendant. As foreign laws, especially Chinese and Taiwan’s criminal procedure law are referred so that the defendant should argue for the justification or excuse defenses. Secondly, the discovery system of criminal evidence should be improved for promoting current Participatory Trial. pre-trial discovery is very important for the guarantee of the speedy trial. Thus, the discovery of criminal evidence should be confined at a preparatory hearing excluding discovery at a trial stage. Lastly, the defendant could be required to looking forward to establish the nonexistence situation or the justifications and the excuses negating or mitigating criminal culpability in the criminal procedure by setting a less severe standard than that of the prosecutor’s burden of proof.