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Criminal Justice Policies and Judicial Systems (V) -Evaluation on Civil Participation in Criminal Trials-
Language
Korean
Authors
,
Date
December 01, 2011
ISBN

Abstract

Part I. Introduction on Civil Participation in Criminal Trials 1. The Act on Civil Participation in Criminal Trials that was passed at the National Assembly of Korea on April 30, 2007 to be in force starting from January 1, 2008 was said to be the most remarkable change in the justice history in Korea and to play an important role at democratization of the justice. The civil participation in criminal trials is to be in force in trial five years, and it shall be final system based on outcome of the performance. When 5-years trial enforcement of the civil participation in criminal trials is completed in 2012, political judgment shall be made to select a system among three alternatives; jury system, schoffengericht and the 3rd civil participation in criminal trials of the Korean justice. 2. In 2008 when civil participation in criminal trials was firstly introduced, number of civil participation in criminal trials accounted for 4,451 cases, 5.2% of which were accepted to account for 233 cases. In 2009, number of civil participation in criminal trials was 7.047 cases, 4.8% of which were submitted to civil participation in criminal trials to account for 336 cases: And, in 2010, number of civil participation in criminal trials was 7,933 cases, 5.5% of which were submitted to civil participation in criminal trials to account for 437 cases. 1,006 cases were applied to civil participation in criminal trials last three years, 40.1% of which were withdrawn to account for 404 cases to be the largest : And, 321 cases (31.9%) were judged at civil participation in criminal trials, and 211 cases (21.0%) were decided to remove by the court. The jury conference judged as follow: The jury members had judged either guilty or not guilty unanimously (208 cases) to occupy 64.8% of all of 3-year cases of civil participation in criminal trials: In other words, judgment of guilty accounted for 188 cases, while judgment of not guilty did 20 cases. On the other hand, judgment of either guilty or not guilty based on majority vote accounted for 48 cases (14.9%). The 3-years judgment of the jury coincided with that of the judge (91%) to be very much high. The coincidence rate of the judgement of both except for confession case accounted for 89.1% to have no great difference. 2008-2010 civil participation in criminal trials had sentencing to consist of actual imprisonment (74.8%), suspended prison sentence (15.0%) and not guilty (8.7%). The civil participation in criminal trials' appeal rate accounted for 86.6% to be much higher than 66.9% of appeal rate of common trial. Part II. Survey on Civil Participation in Criminal Trials 1. The study examined not only cognition on system of civil participation in criminal trials but also operation of the system. The subject consisted of four groups: 1) 1,300 citizens at Seoul and six metropolitan cities in South Korea who were 20 to 70 years old; 2) 175 defendants who were sentenced at the first trial of civil participation in criminal trials, and 190 defendants who were sentenced at common trial; 3) 58 candidate members of jury as well as 90 jury members who joined trial; 4) 48 judges, 67 prosecutors and 61 lawyers. 2. Citizens knew contents of civil participation in criminal trials (47.1%) to be lower than half, and they said success possibility of civil participation in criminal trials (51.9%). And, citizens said that they did not want to join jury as a member (55.9%), and they expected of difficulties at attending a jury because of shortage of time and having adverse influence upon living life. Candidate members of a jury considered to join civil participation in criminal trials and had attitude and experienced operation of civil participation in criminal trials as a member of a jury: They thought of positive effects of civil participation in criminal trials (90.0%). Not only jury members but also candidate members wanted to join a jury again (75.0%), and they thought of success of civil participation in criminal trials (74.0%). The jury members had difficulties at repetition of same contents during hearing and long time trial when attending trial (46.7%) to be higher than other factors. The defendants thought of civil participation in criminal trials: The defendants who experienced civil participation in criminal trials thought of its effects in negative way more than the ones who experienced common criminal trial did: The defendants who did not experience civil participation in criminal trial (70.0%) said that they would recommend it to other prisoners, and they were more than the ones who experienced it (49.4%). And, the defendants who did not experience civil participation in criminal trials thought of success of the civil participation in affirmative way (55.8%): The ones who did not experience the trial (55.8%) were more than the ones who experienced it (43.4%). The defendants said that they applied to civil participation in criminal trials because of fairness of the trial (35.5%) to be the highest, and they did not apply to civil participation or withdrew it because of 'Do not know it' (42.0%). Law professionals such as judge, prosecutors and lawyers thought of civil participation in criminal trials: The prosecutors thought that civil participation in criminal trials was introduced to obtain democratic justification of the justice and to set up reliability upon the justice and to improve citizens' legal consciousness and to educate laws to be over 2.5 on average and to be higher than 2 of judge and prosecutor group on average and to think of it in negative way. The law professionals such as judge, prosecutors and lawyers thought that 'settlement of civil participation in criminal trial', 'jury members' activeness in participation in criminal trials', and 'jury member's pride of civil participation in the trial' were largely good (45.9%, 50.3%, 53% in order) to be high, and they thought that 'citizens' interest in civil participation in the trial' and 'jury member's participation in the trial' were not good (50.6% and 51.5% to be 2.5 that was higher than average): Therefore, interest and participation of both citizens and jury members were found to be low at time elapse. The judge and other judicial jobs thought of jury member's joining in guilty and sentencing procedure and being given effect of sentence: The judge said that jury members should join guilty judgment procedure (62.5%) and sentencing procedure (50%) would be largely needed, and that jury members' effect of sentence on guilty verdict (41.7%) and sentencing (56.3%) would not be necessary. The prosecutors said that jury members' participation in guilty judgment procedure would not be needed (48.5%) to be the highest, and that the member's participation in sentencing procedure would be largely needed (42.4%). The prosecutors said that guilty verdict (37.9%) and sentencing verdict (43.9%) were not needed at jury members' participation in verdict procedure. And, lawyers said that jury members' guilty judgment procedure (48.5%) and effects of sentence of guilty verdict (37.3%) were very much needed: And, lawyers said that jury members' participation in guilty judgment procedure (45.8%) and effect of sentence of guilty verdict (37.3%) were very much needed, and that participation in sentencing procedure (45.5%) and effects of sentence of sentencing verdict (59.3%) were largely needed. The law professionals said that current participation in the trials should improve effect of sentence on jury members' verdict, followed by effects of sentence of jury members' verdict, internal stability of trial preparation procedure and reformation of jury member election procedure in order. Part. III. Evaluation and Political Proposals on Civil Participation in Criminal Trials 1. Investigation into civil participation in criminal trials had not only good result to a certain degree but also limitation at the stage of trial enforcement. At first, participation in the trial could produce good enforcement results; for instance, democratic justification of the justice, reliability on the justice, assurance of defendants' human rights, and citizens' better legal consciousness were thought to be affirmative by more than 80% of citizens, more than 90% of jury members (including candidate members) and more than 70% of law professional group such as judge, prosecutors and lawyers: So, they thought of participation in the trial in affirmative way. Current participation in the trial was successful to a certain degree at initial stage, and it is likely to be citizens' participation in the justice to strengthen strong base and to have good result. The jury members' participation in the trial could elevate not only participation itself but also positive acceptance of their duties. In other words, citizens said that they did not want to participate in the trial as a jury member (55.9%), and jury members and/or candidate jury members said that they wanted to participate in the trial again (78.9%). The jury members' participation in criminal trial could play good role of new type of criminal trial to have affirmative possibility at trial process. The jury members' misjudgment that was expected at initial stage of civil participation in criminal trial was found to be no more than groundless fear. In this study, no law professional said jury members' rationality of guilty and sentencing verdict in negative way. Therefore, jury members' judgment ability would not be of problem to establish system of civil participation in criminal trial. And, enforcement of the system had very much affirmative influence upon court-appointed lawyer's quality and cognition on the defendants. In this study, defendants who experienced civil participation in criminal trial were asked to reply to the question, "How much did your lawyer help you at trial?" The defendants who had court-appointed lawyer gave affirmative answer saying "The lawyer helped me" (70.3%), while the ones who had defendant-appointed lawyer gave less affirmative answer (54%). As such, defendants who experienced civil participation in criminal trial thought of court-appointed lawyer's activities in affirmative way so that civil participation in criminal trial needed not worry about lawyer's quality and defense right. In civil participation in criminal trial, lawyers shall expand defense activity against prosecutors in accordance with Prinzip der Parteiglelchheit to develop defense technique and to defend defendants systematically by lawyer group: The court-appointed lawyers seemed to play role of the lawyer well. In this study, the system of civil participation in criminal trial had limitation at enforcement. At first, citizens' low cognition on the system prevented citizens from participating in the trial. And, defendants avoided civil participation in criminal trial because of their experience of the trial so that defendants' application prevented the system from being established. In other words, at questionnaire survey on defendants who experienced civil participation in criminal trial, the defendants said, "I do not recommend other prisoners civil participation in criminal trial" (50.6%); On the other hand, the ones who did not experience civil participation in criminal trial said, "I would like to recommend other prisoners civil participation in criminal trial" (70%). In this study, current system of civil participation in criminal trial had the greatest difficulties at trial time. In other words, all of the parties, for instance, defendants, jury members, judge, prosecutor and lawyers had burden at the trial because of excessive and intensive hearing that considered jury members. 2. The system of civil participation in criminal trials completed 5-years trial enforcement to decide upon final type of citizens' participation in the justice, so that this study gave legislative and political suggestions based on the findings. The legislative suggestions were; Firstly, jury members' verdict shall be given effect of sentence. Secondly, fact hearing shall be separated from sentencing hearing. Thirdly, the appeal to verdict of not guilty of the trial shall be given limitation. Fourthly, the trial's willenserklerung time shall make correction. Fifthly, reasons of removal of the trial shall be lessened. On the other hand, political suggestions were: Firstly, defendants' watching system shall be introduced to let defendants make change of cognition on civil participation in the trial. Secondly, attendance in the trial can be a reason of public off-duty. Thirdly, court-appointed lawyer shall be separately nominated to assure defendants of actual defense rights, for which eligible court-appointed lawyers shall be trained. Fourthly, the trial time shall keep proper level to lessen burden of excessive and intensive hearing. Lastly, procedure manual of the trial shall be developed.

Heesung Tak

Public Safety and Crime Prevention, Criminal Law&Policy

Senior Research Fellow

Heesung Tak's picture

Research Interest (Major)

Criminal Procedure, Criminal Evidence Act, Digital Forensic Science

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Crime Trends&Analysis

Senior Research Fellow

Soohyeong Choi's picture

Research Interest (Major)

Criminal Sociology

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Korean Institute of Criminology Official Video - image

Korean Institute of Criminology Official Video

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