중앙데일리

The current system is outdated and ordinary people can’t understand it.

Dec 11,2007
Members of a jury are sworn in at a mock trial held Oct. 28 at Seoul Western District Court. By Kim Seong-ryong
Imagine that you’re accused of a serious crime.
As you prepare for trial, you encounter many legal terms you don’t understand. To make matters worse, the legal proceedings are so complicated, you just end up confused.
Then there are the jurists ― members of the judiciary ― who will decide whether you’re guilty or innocent. But are they going to give you a fair trial? Bearing in mind that the rest of your life is at stake, it sounds like a nightmare, doesn’t it?
This is why Korea will start using a new criminal trial system in 2008.
The Justice Ministry has announced the new system, the “People’s Participatory Trial System,” to make the legal system more understandable to the general public.
“We segregated the public from the legal process when we adopted the legal system from Japan in 1895, wherein elite jurists such as judges, prosecutors and attorneys controlled the whole trial system,” said Park Chan-un, a law professor at Hanyang University in Seoul.
The new trial system will be used when defendants are charged with felonies, such as murder or robbery, or upon the request of the defendant or the Supreme Court.
Under the new system the procedure will consist of jury selection, the trial itself, jury deliberation and the verdict.
The jury will have seven or nine members randomly selected from local residents aged 20 years or older.
During the trial, the jury will hear arguments from both the defense and the prosecution. The jury will deliberate on whether the evidence and testimony they heard can prove the defendant’s guilt or not.
The jurors ― the members of a jury ― need to reach a unanimous verdict. If they cannot reach a decision, then they will consult with the judge. The jurors also deliberate with the judge on sentencing if they find the defendant guilty.
The jury informs the judge of the final verdict, and the judge makes his decision with the jury’s recommendation in mind.
This new system is a compromise between two legal systems: adversarial and inquisitorial.
The United States and Britain use the adversarial system, in which citizens make up a jury that decides whether a person on trial is guilty or not. Then the presiding judge has to accept the jury’s decision.
The judge’s role is to make a decision on how heavy the punishment should be.
Under the inquisitorial approach, which is used in Germany and France, the jury and a group of judges decide the defendant’s guilt or innocence and sentence the person together.
One of the starkest differences between the two is the assumption of the defendant’s guilt.
In the adversarial approach, a defendant is presumed innocent until found guilty.
But in the inquisitorial system, there is no presumption of innocence. The whole point of the inquisitorial system is to find out what happened in the incident. In the adversarial system the key is to determine if the person charged is guilty or not of the specific crime he is accused of.
In many cases, each system may differ in the approaches used, often in the way cases are reviewed.
Proponents of the adversarial system often argue that this system is more fair and less prone to abuse than the inquisitorial approach because it allows less room for the state to be biased against the defendant.
It also allows most private litigants to settle their disputes in a friendly manner through discovery and pretrial settlement. Here, the two parties agree on uncontested facts and these are excluded during the trial.
In the United States, the right to a trial by a jury of one’s peers is guaranteed by the Constitution.
Proponents of inquisitorial justice dispute these points.
They point out that most cases in adversarial systems are actually resolved by plea bargaining and settlement.
This means that many legal cases in these systems do not go to trial. This can be greatly unfair to defendants who have an unskilled or overworked attorney, which is likely to be the case when the defendant is poor.
In addition, supporters of the inquisitorial system argue that plea bargaining can lead participants to act in dishonest ways.
Critics say it encourages prosecutors to bring charges that are too harsh, and it causes defendants to plead guilty even when they believe that they are innocent.
In the current system in Korea, a judge typically reviews a case presented by a defendant’s attorney and the prosecution, determines the verdict and pronounces the sentence in both criminal and civil cases.
In the new system to be introduced next year, the jury will reach a verdict of guilty or not guilty independently from the judge. This feature is very similar to the adversarial system.
But the new system resembles the inquisitorial system in another way: The jurors consult with the judge on the matter of sentencing.
The biggest difference between the Korean version and the other two systems is the Korean judge’s overriding power over the jurors’ decision.
The judge is the final decision maker. The verdict of the jurors is more of a recommendation to the judge.
If a judge reaches a decision that is different from the jury, however, then the judge has to make a statement on his reasoning.
Under the new Korean trial system, Koreans will be able to participate in a trial as jurors for the first time in the nation’s history.


By Lee Yang-kyoung Staff Reporter / Jang Uk JoongAng Ilbo [enational@joongang.co.kr]


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