국민참여재판에서의 실질적 직접심리주의 구현

The realization of the principle of practical direct examination in participatory trials

The target judgment held that the appeals court should not arbitrarily overrule the judgment of the first instance based on the unanimous verdict of the jury, unless sufficient and convincing circumstances to the contrary clearly emerged through the examination of new evidence. The reason that the appellate court held that the judgment of the first instance should be respected is that the judgment of the first instance was the result of the jury's judgment based on the principle of practical direct examination. As such, the conclusion of a participatory trial is an authoritative decision that is respected by the appeals court and cannot be overturned. However, the fact that the reality of our participatory trials is quite different from these expectations can be confirmed from the cases of participatory trials cited in this article. In fact, there are a number of cases in which the current participatory trial is somewhat far from the principle of practical direct examination, which is conducted in a written trial like general trials. If this phenomenon is due to the realistic circumstances of the limitation of judicial resources, solving these realistic problems should be the first, and the ultimate improvement plan is to finish the trial implementation for more than 10 years and re-establish a complete trial system. Next, putting these legislative and administrative improvements aside, a realistic alternative that can be considered within the framework of the current system is to acknowledge the current reality of a one-day trial and to acknowledge the unavoidable written trial practice due to a one-day trial. And in terms of selection and concentration, it is necessary to limit the scope so that only a very small number of cases in which the case is serious and the accused denies the charges are subject to the participatory trial. In addition, in the era of digitalization of criminal justice procedures starting from the end of 2024, it is necessary to prepare for witnesses of investigators, investigation of evidence for audio or video recordings, and video trials in participatory trials. As a result, although it is a reality that harms the authority of participatory trials, the current high appeal rate is inevitable given the characteristics of our system, which is quite different from the US jury system.