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Kangaroo Court and Deliberative Democracy - A Brief Comment on the Jury Trial and Democracy -

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2018, 6(1), pp.187-222
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law

Jongho Kim 1

1호서대학교

Candidate

ABSTRACT

This paper has discussed the many rationale for the argument on jury trial system. I reviewed and summarized Tocqueville’s intentions of the importance of the jury system to the democratic government, and also explored the study of the modern jury trial system that supported Tocqueville’s idea. I also briefly mentions the deliberative democracy and the movement of restorative justice, and shows that both of these intellectual positions can be found in the ideals of the many merits of Tocqueville’s identified jury trial system. At the same time, it has also pointed out that jury trial is increasingly being extinguished both in criminal cases and in civil cases in the judicial proceedings of the British Common Law more broadly than in the United States. The supporters of the jury trial system are advocating the maximization of the system that performs similar functions as the jury trial or the similar jury trial system. Likewise, groups adopting restorative justice argue that they can achieve more effective suppression of justice or crime than traditional judicial procedures. Are they all insisting that we should carry out a campaign to maintain jury and jury trial system? In this article, I pointed out that the most important function of the US jury trial was to contribute to taking the materials that make convincing the guilty answer against defendant. Likewise, it may be possible to think that our new jury system contributes to other unclear functions. For example, reformers who have challenged the functioning of the jury trial by challenging the prosecution’s monopoly of the prosecutor and by expanding the role of a lawyer seem to redistribute the balance of their merits, but even if nothing actually changes or changes I know that only a very small degree has changed. If this is true, it is a retreat for liberals who is trying to change the status of criminal proceedings that totally and capriciously handled by prosecutor. It will bring about changes in appearance, while strengthening existing power. There will be many evaluations that are more optimistic when comparing the results of the jury trial system compared with the jury trial system in the United States. Of course, the American jurisdiction and Korean type jury trial system are completely different systems. However, in terms of citizen participation in the trial, it is homogeneous. In this sense, I think that the political significance pointed out by Tocqueville can be found in the system of Korean public participation trial. In other words, I think that the system of public participation trial has the potential to become a turning point to create a new ‘public nature.’ It is the basis of democracy to have such an interest in public. However, the citizen participation trial system gives a new burden to citizens who are busy in everyday life. It is also difficult to see the Judicial Reform Commission adopting a system of Korean type jury trial system in this sublime perspective. Even so, the Korean type jury trial system that increases the number of participating in publicity is a means to reach the essence of democracy.

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