국민참여재판에서 배심원 평결의 기속적 효력에 관한 검토

• 영문명: An Analysis and Suggestion of Binding Force of Jury Verdict in Korea
• 발행기관: 한국형사정책학회
• 저자명: 한상훈(Han, Sang-Hoon)
• 간행물 정보: 『형사정책』刑事政策 第24卷 第3號, 9~38쪽, 전체 29쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2012.12.31

영문 초록

Launched in 2008, citizens' participation in the serious criminal trials have been going well for five years in Korea. Number of applications for citizen participation reached 1,490 from January 1, 2008 to December 31, 2011, and 574 cases of which have been eventuallly tried with jury(38.5%), in the rest of cases defendants withdrew the applications or the court decided it was inappropriate for jury trial. In the beginning there were concerns about the successful administration of jury trial in Korea, however, the current situation is quite stable and settled. In July, 2012, the Supreme Court Judicial Participation Commission was instituted to discuss and decide a final form of civil participation in criminal trials. Now is such a critical moment that this paper tries to review and discuss one of the most important issues - jury's verdict should have a binding force on judge in guilty or not guilty question. Until now, the jury verdict has a recommendation effect. The Office of Court Administration reported that jury verdicts and the judge decisions have been the same in result in more than 90 percent of tried cases, which demonstrates the credibility of jury's judgment. Moreover, 81 percent of the 2,595 jurors surveyed from January 2010 to June 2012 across the nation responded in favor of the binding force, some for hard binding force, the others for soft one. In addition, the Korean Constitutional Court decided that the right to trial by judge(Art. 27 (1)) was not violated when a petitioner had at least one opportunity to be reviewed on fact and law by judge throughout the trial to the appeal. The paper maintains that a "soft binding force" of jury verdict on judge would be proper and desirable for the second stage of civil participation in Korea, giving judge the power to veto where, for instance, there are some exceptional grounds to believe that the jury verdict is unreasonable or in violation of the constitution or the lav. We should go one more step forward in harmony with the representative democracy, separation of powers, and the right to trial by judge.

목차

1. 서론

2. 배심원평결의 기속력 부여에 대한 판례와 학설의 검토

3. 배심원평결의 신뢰성과 기속력에 대한 실증연구

4. 배심원 평결의 바람직한 효력

5. 맺음말

참고문헌

Abstract

키워드

배심재판 평결 기속력 법관에 의한 재판을 받을 권리 한국 Jury trial verdict binding force right to trial by judge Korea