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서울대학교 법학 , 2004년, pp.119 - 140  
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국민의 사법참여 ― 무엇이 문제인가 ―
LAY PARTICIPATION IN JUDICIAL DECISION-MAKING IN KOREA?

최대권 
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    The question of whether some form of lay participation in judicial decision-making should be adopted in Korea has recently been hotly debated in the wakeof democratization process. The Judicial Reform Commission is known to beintent on recommending to the Chief Justice of the Supreme Court a certainform of lay participation institution for adoption in the Korean judiciary. By nowthe question seems to have come to an almost bygone conclusion so that thenext issues of when to adopt what kind of lay participation alone are left fortheir final determination. It is only natural that the questions of on what groundsuch an institution is justified and of whether its adoption is rational respectivelywith one of the two known lay participation systems, that is, jury or assessorsystem, follows the questions just mentioned above.At least the following five elements of the matter should be consideredevaluate its justification and rationality correctly. First of all, its constitutionalityshould be assessed. Since the Constitution of Korea provides for the people'sright to trial by a judge qualified under the Constitution and the law(Article 27Section 1), the question arises of whether a jury trial or a trial conducted withassessor judges meets the constitutional requirement or not. There exist answersboth pro and con. Here an argument is made in favor of an affirmative answerwith certain qualifications. Secondly, the question is of whether it is demandedin the name of democracy. Lay participation is definitely a democratic institutionin that it is a history-proven bastion of citizen's freedom against oppression, anexcellent educational institution teaching citizens their responsibilities and duties, and a citizen watch-dog institution against corruptions of professional judges.Thirdly, the question is of whether citizens are as capable of conductingjudicial functions as professional judges with fact-finding in the case of jury andboth fact-finding and application of law in the case of assessor judges. It is hardto provide a definite answer to the question but it is suggested as beingfunctional in making aloof professional judges keep up with the common senseof everyday life. Fourthly, possible higher corruptibility of juries and lay judgesthan professionally trained judges is the matter of serious concern by many.Since this matter goes together with those institutions (change of venue, voirdire, challenge, criminal prosecution of bribery charges, etc.) that are designedfor its control, it may not be as serious as one might think. Fifthly, variousfinancial and social costs that must accompany lay participation institution tendto make one reluctant in introducing such an institution. Many Anglo-Americanscholars and practitioners also advise us not to introduce it out of their plentycostful experiences with jury system.After all, it is hard to determine one way or the other. But the present stateof Korea democratization certainly demands it. On balance, an assessor systemappears to be much less costly and requires much less accompanying changes inits introduction than jury system. Probably an assessor system will be adopted,although, it may be too early to predict.


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