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This paper aims at providing the reform argument of korean judicial system with some suggestive points by considering the introductory process and contents, etc. of “saiban-in” system as a new structure that can allow laypersons to subjectively and substantially take part in making decisions, and other judicial system reform arguments in the Constitution of Japan.
The reform argument of Judicial system while entering in the 1990s in Japan started to establish main points by introduction of “saiban-in” system and law school, speeding up of trials, etc. It came to join the global flow called judicial participation by introduction of “saiban-in” system in Japan. Now in Japan, the necessity of overcoming the conventional abstract argument is emphasized, and it is necessary to study more concrete argument about the exact recognition to realistic trials, and the judicial participating system actually performed in foreign countries. Thus, Japanese judicial system has greeted the 21st century-turning point, and this trend will be very helpful for the argument about the reform of korean judicial system.
Firstly, what needs to be emphasized is to approach from the broader view what to require from a judge’s duty, especially such as the phenomenon recognition to justice, in our judicial participation argument concerning Jury system and lay justice system after this. Today, it can be said also in constitutional study that it has entered at the time when the strain relation between independence of the judge’s status and the principle of sovereignty of the people. Therefore, the words like former “democratization” of justice or the sovereignty of the people cannot be sufficient reasons for adoption of Jury system and Lay justice system, and we have to grope for new court system which can reflect required people’s voice simply, taking into consideration the functional ambivalence of judicial participation.
Secondly, although adoption of the judicial participating system by law is also important, the positive participation and positive concern about base formation of the system are considered to be important above all. I would like to emphasize the necessity for the national trial external activity represented by the support activities to a lawsuit from now on. Especially, systematic hearing movement of people in trials in Japan which cannot look for the example in foreign countries can carry out the “surveillant role” for fair trials at the point of making public opinion ventilated widely. These activities can become the motive power which prepares the base for driving out new participating system.
Thirdly, as you know from the latest argument, we are already going to realize judicial participation as a court system of an ideal democratic state in step with the tendency of global opening and democratization also in Korea. In the meaning of making our judicial reform argument richer, more in-depth and continuous research is required. And it is also important not to stop at the argument about the constitutional conformity of the judicial participating system, but for people to have exact knowledge, and to cultivate the fundamental capability which can perform proper judgment from a viewpoint of base formation of the judicial participating system to introduce.
Finally, an important point to emphasize is the necessity for consciousness change of professional judges. As mentioned above, seeing from trial hearing movement of people, flourishing activity of the bar association, the positive posture of the court, etc., it seems that the way of judicial participation spreads and goes gradually in Japan. However, adoption of the new judicial participating system called “saiban-in” system does not mean realization of true judicial participation. Unless professional judge’s consciousness changes, adoption of the new system will stop passing in “external participation” after all. Therefore, their constitutional feeling and consciousness in the direction which thinks the function of “self-government” or “participation democracy” are very important by the end of today when the function of surveillance and control to professional judges is emphasized.
The reform argument of Judicial system while entering in the 1990s in Japan started to establish main points by introduction of “saiban-in” system and law school, speeding up of trials, etc. It came to join the global flow called judicial participation by introduction of “saiban-in” system in Japan. Now in Japan, the necessity of overcoming the conventional abstract argument is emphasized, and it is necessary to study more concrete argument about the exact recognition to realistic trials, and the judicial participating system actually performed in foreign countries. Thus, Japanese judicial system has greeted the 21st century-turning point, and this trend will be very helpful for the argument about the reform of korean judicial system.
Firstly, what needs to be emphasized is to approach from the broader view what to require from a judge’s duty, especially such as the phenomenon recognition to justice, in our judicial participation argument concerning Jury system and lay justice system after this. Today, it can be said also in constitutional study that it has entered at the time when the strain relation between independence of the judge’s status and the principle of sovereignty of the people. Therefore, the words like former “democratization” of justice or the sovereignty of the people cannot be sufficient reasons for adoption of Jury system and Lay justice system, and we have to grope for new court system which can reflect required people’s voice simply, taking into consideration the functional ambivalence of judicial participation.
Secondly, although adoption of the judicial participating system by law is also important, the positive participation and positive concern about base formation of the system are considered to be important above all. I would like to emphasize the necessity for the national trial external activity represented by the support activities to a lawsuit from now on. Especially, systematic hearing movement of people in trials in Japan which cannot look for the example in foreign countries can carry out the “surveillant role” for fair trials at the point of making public opinion ventilated widely. These activities can become the motive power which prepares the base for driving out new participating system.
Thirdly, as you know from the latest argument, we are already going to realize judicial participation as a court system of an ideal democratic state in step with the tendency of global opening and democratization also in Korea. In the meaning of making our judicial reform argument richer, more in-depth and continuous research is required. And it is also important not to stop at the argument about the constitutional conformity of the judicial participating system, but for people to have exact knowledge, and to cultivate the fundamental capability which can perform proper judgment from a viewpoint of base formation of the judicial participating system to introduce.
Finally, an important point to emphasize is the necessity for consciousness change of professional judges. As mentioned above, seeing from trial hearing movement of people, flourishing activity of the bar association, the positive posture of the court, etc., it seems that the way of judicial participation spreads and goes gradually in Japan. However, adoption of the new judicial participating system called “saiban-in” system does not mean realization of true judicial participation. Unless professional judge’s consciousness changes, adoption of the new system will stop passing in “external participation” after all. Therefore, their constitutional feeling and consciousness in the direction which thinks the function of “self-government” or “participation democracy” are very important by the end of today when the function of surveillance and control to professional judges is emphasized.
목차
Ⅰ. 머리말
Ⅱ. 국민의 사법참가의 실제경험과 필요성
Ⅲ. 전후의 사법개혁과 사법참가의 헌법론
Ⅳ. 국민의 사법참가의 실태와 현대적 과제
Ⅴ. 맺음말
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