Jury trial

Civil participation in criminal trials (jury trials 국민참여재판/國民參與裁判) was introduced for the first time in Korea on January 1, 2008. The Korean jury system incorporates elements of both the U.S.-style system and the German lay assessor system to assess the actual experience of citizen participation in trials during the initial five year experimental phase.

The new jury system, even if in a very limited scope, is expected to bring about fundamental changes in judicial decision-making in Korea, which has traditionally been managed only by professional judges. The jury trial in Korea will also change the way criminal trial proceedings are conducted in general. It is also expected to create more sophisticated evidentiary rules for criminal trials. In May 2011, the jury trial came into spotlight when it was adopted by the Busan District Court for the Somali pirates trial. For now, the verdict reached by the Korean jury does not bind the judge- however, it has a highly persuasive authority and the judges usually respect the jury's decision.

Key words
jury trial, civil participation, criminal proceedings, judge, evidentiary rules

Disputes over the Jury System
Various opinions have been put forward to assess the past two years of experience regarding the effectiveness and validity of the jury system in Korea.

Some have criticized that Korean jurors are emotional and political-minded, and are not trained to determine legal issues. Others have argued that the general public lacks the “legal frame of mind” and a dispute-averse, harmony-oriented cultural tradition might be incompatible with a jury system.

However, many legal practitioners who are involved in the jury trials have witnessed positive effects of the new system with regard to the behavior of the public prosecutor and the judge and perceived a heightened general awareness of the rule of law in the public.

A social evaluation of the Korean jury system is currently underway. The success of the jury system requires the people’s support and respect for jury verdicts. Because of this connection, empirical testing of the jury system is necessary in order to stabilize the system in Korean soil.

Legal Background
Civil participation in judicial decision-making in Korea never materialized until the early 21st century.

The adoption of the jury system was mainly driven by participatory democratic concerns. Jury system and legal educational reform were the two most important goals of the judicial reform movement during the Roh Moo-hyun administration (2003-2008), known as the “Government of Participation.” Concern over professional judges’ dogmatic judgment and their monopoly on fact-finding motivated the introduction of the new jury system.

The two main purposes of the new system, as reflected in the Act for Civil Participation in Criminal Trials (국민의 형사재판참여에 관한 법률/國民 刑事裁判參與法), are to reinforce the democratic legitimacy of the judicial process and to enhance the transparency and credibility of the judiciary. In terms of actual change in practice, these two legislative purposes come down to issues of a more open process for criminal trials and more opportunity for parties to advocate and develop evidence-based arguments during court proceedings.

The Act was promulgated in conjunction with the recent major revision of the Criminal Procedure Act, which aims to enhance due process and public criminal trial principles. In essence, the jury trial is the de facto test case for fully materializing the Criminal Procedure Act principles. For instance, the court must hold a pretrial preparatory conference if the defendant chooses a jury trial because the preparatory conference is regarded as a very important feature of the jury system. A jury trial specifically provides parties the opportunity to participate in oral argument, in contrast to the “trial by dossiers” (조서재판/調書裁判) (in which truth-finding depends heavily on the dossiers submitted by the public prosecutor rather than on cross-examinations in the courtroom).

Evaluation and Prospects
The jury system was brought about to enhance concentrated reviews by the court.

Prior to the new rules under the Criminal Procedure Act, the court conducted proceedings in a series of separate sessions in two-week intervals. Under the new rules, a trial should be held on consecutive days if it requires two or more days to complete, except in the case of unavoidable circumstance.

The jury system is expected to significantly change the communicative dynamics of the courtroom. The existing system of contention and arguments projected toward the bench will be changed to a system in which the parties present their cases to the jury in a lucid way that is easy for the lay jurors to comprehend. Naturally, the whole process and the legal language spoken at trial must be streamlined and refined.