SHERP

국민의 사법참여 -무엇이 문제인가-
Lay Participation In Judicial Decision -Making In Korea?

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Authors
최대권
Issue Date
2004
Publisher
서울대학교 법학연구소
Citation
법학, Vol.45 No3 pp.119-140
Keywords
사법에 대한 민주화의 요청배심재판제도사법민주주의사법의 정당성국민의 신뢰의 문제
Abstract
The question of whether some form of lay participation in judicial decisionmaking
should be adopted in Korea has recently been hotly debated in the wake
of democratization process. The Judicial Reform Commission is known to be
intent on recommending to the Chief Justice of the Supreme Court a certain
form of lay participation institution for adoption in the Korean judiciary. By now
the question seems to have come to an almost bygone conclusion so that the
next issues of when to adopt what kind of lay participation alone are left for
their final determination. It is only natural that the questions of on what ground
such an institution is justified and of whether its adoption is rational respectively
with one of the two known lay participation systems, that is, jury or assessor
system, follows the questions just mentioned above.
At least the following five elements of the matter should be considered to
evaluate its justification and rationality correctly. First of all, its constitutionality
should be assessed. Since the Constitution of Korea provides for the people's
right to trial by a judge qualified under the Constitution and the law(Article 27
Section 1), the question arises of whether a jury trial or a trial conducted with
assessor judges meets the constitutional requirement or not. There exist answers
both pro and con. Here an argument is made in favor of an affirmative answer
with certain qualifications. Secondly, the question is of whether it is demanded
in the name of democracy. Lay participation is definitely a democratic institution
in that it is a history-proven bastion of citizen's freedom against oppression, an
excellent educational institution teaching citizens their responsibilities and duties,...
ISSN
1598-222X
Language
Korean
URI
http://lawi.snu.ac.kr/

http://hdl.handle.net/10371/9832
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 45, Number 1/4 (2004)
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