Lay Participation In Judicial Decision -Making In Korea?

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,...이 논문은 서울대학교 법학발전재단 출연 법학연구소 기금의 2004학년도 연구지원비 의 보조를 받았음