국민의 사법참여 -무엇이 문제인가-

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,...