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Citizen Participatory Trials in South Korea

This is a guest blog by Younkyung (Regina) Eum, a foreign law intern working with Foreign Law Specialist Sayuri Umeda in the Global Legal Research Directorate of the Law Library of Congress.

I recently started watching the South Korean show Extraordinary Attorney Woo, a popular drama about an attorney with Asperger syndrome. In addition to addressing what obstacles lawyers with disabilities might face, it teaches the audience about the South Korean judicial system. I was pleased to see that the depiction of the legal system was generally accurate, in particular with regard to citizen participatory trials, the name for South Korea’s jury system. This post will describe citizen participatory trials.

A photo of citizen participatory trial on the Korean Supreme Court website, Public Work under South Korean Copyright Law art. 24-2

Citizen Participatory Trial and the Constitution

The citizen participatory trial system was implemented in South Korea in 2008 in accordance with the Act on Citizen Participation in Criminal Trials (ACPCT, Act No.8495, June 1, 2007, as amended by Act No.14839, July 26, 2017). According to the South Korean Constitution, all citizens have the right to be tried in conformity with the law by judges qualified under the Constitution and the law (Con. art. 27, para. 1).

The government introduced the ACPCT in order to enhance the democratic legitimacy and transparency of judicial power, by enabling citizens to participate in trials as jury members. Based on article 27 of the Constitution, however, judgments are rendered by qualified judges. Juries’ decisions and opinions, therefore, do not bind the court. Accordingly, the ACPCT provides that while jury’s decisions may under conditions enumerated be considered by the judge before making a judicial determination, “[n]o verdict and opinions [by the jury] … shall be binding on the court” (art. 46(5)).

Art. 46 of the ACPCT regulates the procedures that apply to participation of citizens as jurors in trial.  The article clarifies that,

(1)        The presiding judge shall, upon closing of pleadings and arguments, explain to jurors in the court about essential points of prosecuted facts, applicable provisions of Acts, essential points of pleadings and arguments of the defendant and defense counsel, admissibility of evidence, and other significant matters. In such cases, an explanation about essential points of evidence may be also given, if necessary.

(2)        Jurors taking part in a trial shall deliberate on whether guilty or not guilty after hearing the explanation under paragraph (1), and may deliver a verdict if the jury reaches an unanimous verdict: Provided, That the jury may hear opinions of judges who take part in the trial when a majority of jurors requests to do so.

(3)        If the jury fails to reach an unanimous verdict of guilt or non-guilt, the jury shall hear opinions of judges who take part in the trial before delivering a verdict. In such cases, a verdict of guilt or non-guilt shall be concluded by a majority decision. Judges who take part in the trial shall not participate in the verdict, even in cases where they attend the deliberation and make statements on their opinions.

(4)        If a verdict delivered pursuant to paragraph (2) or (3) is guilty, jurors shall discuss sentencing with judges who take part in the trial and shall express their opinions. The presiding judge shall explain the extent of punishment and conditions of sentencing before discussing sentencing.

(5)        No verdict and opinions under paragraphs (2) through (4) shall be binding on the court.

(6)        Documents compiled with results of a verdict under paragraphs (2) and (3) and opinions under paragraph (4) shall be filed in the relevant trial records.

Conditions for Citizen Participatory Trials

There are three conditions for proceeding with the citizen participatory trial. First, the trial must address crimes that are punishable by one or more years of imprisonment or by capital punishment (ACPCT art. 5; Court Organization Act, Act No. 3992, Dec. 4, 1987, amended by Act No. 17689, Dec. 22, 2020 art. 32). The second condition is that the defendant wishes to be tried in a citizen participatory trial. A defendant must submit a written statement describing whether he/she desires a citizen participatory trial within seven days from the date on which the indictment is served (ACPCT art. 8). The third condition is that the court has not excluded the case from citizen participation. The court may exclude the case from citizen participation when the victim of a sexual crime or his/her legal representative does not want a participatory trial (ACPCT art. 9).

Selection of Jurors

The court chooses prospective jurors randomly from the juror pool list and serves summons for proceedings of selecting jurors and alternate jurors. In general, nine jurors participate in a trial of a case in which the defendant is subject to the death penalty or life imprisonment, and seven jurors participate in other cases (ACPCT art. 13).

Under the ACPCT, any Korean citizen over the age of 20 can serve as a juror (ACPCT art. 16). The head of a district court annually prepares a list of prospective jurors using the resident registration information of citizens aged 20 years or older who reside within its jurisdiction (ACPCT art. 22).

The court may exempt persons, such as people over 70 years of age, those who were arrested or detained under the law, or who have difficulty appearing in court due to serious illness, injury or disability, etc., from performing jury duties (ACPCT art. 20).

Decreasing Numbers of Participatory Trials

The number of citizen participatory trials has reportedly been continuously decreasing since 2016. Therefore, the Judicial Participation Planning Task Force, which consists of various representatives from the prosecution, bar associations, academia, media, and social groups, under the jurisdiction of the Supreme Court, started research and discussion in order to expand public participatory trials in May 2022. In addition, eleven national assembly members proposed a bill (No. 2116870, Aug. 16, 2022) to revitalize the citizen participatory trial by expanding the eligible cases to attain the ACPCT’s objective of promoting the democratic legitimacy and transparency of the judicial system.

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