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There are better solutions

Korea introduced the jury trial system in 2008. For the first time in history, the public could sit in the courtroom as jurors, review trials and present their opinions on the verdict and sentencing. The National Assembly evaluated the trial of the system as a success and expanded the scope in July 2012.

Introducing a new system inevitably meant trial and error. Therefore, Article 55 of the Act on Citizen Participation in Criminal Trials required the establishment of the Committee for Citizens’ Participation in Judicial System under the Supreme Court to decide the final format of the jury trial.

In July 2012, experts from the courts, prosecution, lawyers, scholars, activists and journalists formed the committee and made their final recommendation to the chief justice of the Supreme Court in March last year based on their analysis of the five-year trial period.

And yet the Justice Ministry’s plan to revise the system, presented in December, was quite different from what was recommended.

The committee said there should be compulsory elements and allowed the court to use its authority to have jury trials and prosecutors to request them.

The ministry’s revision plan, however, removed the court’s authority and only gave the prosecutors the ability to apply for jury trials.

Furthermore, it also gave the prosecution the power to recuse some cases from jury trials.

The ministry argued that it has listened to the opinions of the various groups of society. When the committee made its review, experts from the ministry and the prosecution had participated and the final guidelines of the committee were decided after serious and in-depth discussions.

The ministry’s attitude of treating the committee’s final recommendation lightly is an act that ignores the law created by the National Assembly.

Furthermore, the ministry’s planned revisions included what it called a mechanism to modify the shortcomings of jury trials for election cases. According to the plan, almost all election cases will be excluded from jury trials.

But this is not an issue about the jury trial system. In order to exclude election law violation cases from jury trials, article 269 of the election law, which requires all election cases - whether the charges are serious or not - be tried through a three-judge panel, not a single-judge panel.

After the recent controversy surrounding jury trials in election cases, criticism arose that jurors were being swayed by their emotions.

The Justice Ministry apparently planned to give prosecutors the authority to recuse some cases, perhaps due to this controversy.

The ministry’s perspective, however, is wrong. Article 15 of the criminal litigation law requires a prosecutor to ask a higher court to decide the jurisdiction when the fairness of a trial cannot be guaranteed due to whatever reason, including regional sentiment.

Concerns about fairness must not be blamed on jury trials. As we have already seen in cases of judicial corruption in Gwangju, they must be resolved by changing the jurisdiction.

The ministry’s revision plan inspired various thoughts about prosecutorial reform. The ministry must not worsen the jury trial system. The Committee for Citizen Participation in Judicial System decided on the final format of the system based on the law established by the National Assembly.

The ministry’s revision plan, which will limit the scope of the system and give the exclusive right to the prosecution to decide which cases will be tried by a jury, shows why we need prosecutorial reform initiated from the outside. The National Assembly must make a serious review of this matter.

Translation by the Korea JoongAng Daily staff.

*The author is a professor of law at Seoul National University.

By Shin Dong-won
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