A benchmark in Asian judicial reform: the new Korean jury system.

• Author: Kim, Rosa

1. INTRODUCTION

   In February of 2008, a nine-member South Korean jury in a court located in the city of Daegu unanimously convicted a 27-year old man of assaulting a 70-year old woman during an attempted burglary. (1) Defense counsel argued for leniency by stating that the defendant had taken the victim to the hospital and turned himself in. (2) After a two-hour deliberation, the jury recommended a suspended sentence of thirty months and eighty hours of community service. (3) What seems like a run-of-the-mill jury trial to those who take the jury system for granted, was momentous for Korea (4), as it was the very first jury trial in its history.

   The new criminal jury trial system is an important benchmark in South Korea's overall process of democratization. Since the government instituted its 1987 Constitution, it has endeavored to bring about comprehensive democratic change in its political institutions. The drive towards creating legal and political systems that reflect an adherence to the rule of law and democratic ideals has resulted in significant alterations in the judicial and legal realms. The moves towards more democratic--some would say Western--institutions seem inexorable, as they have gone hand in hand with the rapid pace of economic development in the global market.

   In 2007, two significant developments marked the next wave of legal reform in Korea: legal education reform and the introduction of a jury system. The complete revision of the legal education system from a Bar Exam-focused undergraduate degree and official two-year government training signaled a major change in the legal profession. Yet instituting a jury system is even more transformative, as it is unprecedented in Korea's history and runs counter to some deeply rooted cultural and social norms, not to mention Korea's civil law history.

   On January 1, 2008, the initial legislation established a five-year pilot program, implementing juries in limited criminal circumstances and for limited power to bind the verdict. With the overall success of the program broadly acknowledged as of 2012, the initial program has been modified to account for some of the issues that arose during the pilot period. Aside from the logistical issues of administering a jury system, this new "remarkable experiment in democracy" (5) raises a host of interesting and important questions, some that are emblematic of jury use in newly developed countries, particularly in East Asia, and others that are unique and specific to Korea, its history, and its culture. The use of juries certainly signals a fundamental change in criminal trials and judicial decision-making in Korea.

   This Article examines the trajectory of legal reform in Korea with a focus on the new effort to include citizen participation in the criminal justice system. Part I will provide a brief historical overview of the Korean criminal justice system and its evolution as part of an overall effort for judicial reform. This background is essential to understanding the circumstances giving rise to the push for a jury system in Korea. Part II will explore judicial reform as a global trend, including the various forms of juries and citizen participation in judicial decision-making, giving context to the uniqueness of the Korean jury system. Part III will explain the features of the new jury program and the constitutional issues they raise. Part IV will assess the first trial period and will identify challenges to address, with reference to key empirical studies. Finally, Part V will explore the impact of juries on the legal culture and profession in Korea.

2. HISTORICAL OVERVIEW

   Korea's process of implementing judicial reform legislation in the past decade or so reflects the dynamic changes occurring in Korea's political and economic climate. In particular, the emphasis on liberalization, combined with similar global trends, has propelled the reforms. (6) Since the 1980's, Korea has undergone rapid and dramatic changes in the process of democratization, economic crises, and the emergence of civil society as a significant force. (7) Naturally, the country faces the challenge of figuring out how best to "institutionalize, encourage and integrate citizen participation" in the overall political process within the context of existing principles of governance and evolving democratic ideals. (8) The transformation of its legal system has been occurring against a backdrop of Confucian tradition and values. This tradition includes such characteristics as aversion to litigation and a preference for social norms as the primary regulatory mode, a strict social hierarchy based on a vertical set of relationships rather than one that assumes equality, and a belief in positive law as a tool of government, thus belief in a "rule by law" rather than "rule of law." (9) Thus, it is essential to take into account the history of criminal procedure in Korea to appreciate the role that instituting a jury system plays in the judicial reform process in Korea.

   1. Korean Criminal Procedure

      The highly hierarchical social structure in Korea was reflected in the state-centric legal and political structure imposed during Japan's colonial rule, from 1910-1945. (10) While Japanese influence included Western concepts taken from the German and French models, and Korea adopted the structure of a model legal system in a formal sense, the reality of Korea's legal system was a low level of judicial independence, little separation of powers, and low priority given to constitutional rights. (11) Since the institution of the first Constitution in 1948, through the legacy of the Korean War, governance was a function of authoritarian military leaders with repressive and suppressive regimes until the 1987, when a new Constitution was instituted. (12)

      Post-1987 legal reform increased legalization of the rule of law, and the Constitutional Court of Korea became an important political player by championing civil rights and proper restraints on government authority. (13) These political efforts toward reform of the legal system also encouraged more litigation to advance social agendas. (14) Overall, democratization has elevated the status of judges, downgraded that of prosecutors, and has led to the expansion of the legal profession. (15) Traditional modes of conflict resolution, such as mediation by family members of village leaders outside the court, have largely become restricted or obsolete. (16)

      The 1987 Constitution provided the foundation for what might be called the "constitutionalization of criminal procedure" in Korea. (17) Specifically, it created the Constitutional Court, which would be an important tool against unconstitutional laws and police practices that infringed on the rights of criminal suspects and defendants. (18) Most notably, the 1987 Constitution contained provisions that incorporated the principle of due process and a Bill of Rights for criminal defendants. (19) Among the rights enumerated are the privilege against self-incrimination, right to counsel, right to be informed of the basis of an arrest, right to fair, speedy and open trial, and presumption of innocence. (20) These provisions reflect a focus on protecting human rights and civil rights, which was not present under authoritarian regimes. (21)

      Subsequent amendments to the Korean Criminal Procedure Code in 1995, including an "arrest warrant" requirement based on a probable cause standard, enhanced the procedural rights of criminal suspects and defendants, as well. (22) The Supreme Court also strengthened some key rights provided in the Bill of Rights through its decision confirming a suspect's right to remain silent upon detention or arrest in 1992 (Korean version of Miranda v. Arizona) (23) and two rulings confirming the right to counsel in 1990 (Korean version of Massiah v. U.S.). (24) If the first phase of Korea's "criminal procedure revolution" involved bolstering procedural rights and deterring police misconduct, the second phase would entail strengthening the legitimacy of the judiciary. (25)

   2. The Judiciary

      Historically, criminal procedure and judicial decision-making in Korea have been the exclusive domain of professional judges. (26) Indeed, public service has been considered the noblest profession in Korea, and judgeships have been at the top of the hierarchy of public service. (27) Judges are a highly revered and exclusive group in Korea, given that they graduate from the top universities, and come from the ranks of the top graduates of the government-run judicial training program, the Judicial Research and Training Institute ("JRTI"). (28)

      Training at the JRTCI entails one year of lecture-based instruction and one year of apprenticeship in a court, law firm, law office, or public organization. (29) Upon graduation from the JRTI, trainees are appointed as judges or prosecutors, or became private practitioners, according to their scores on the final exam. (30) While the judiciary was composed of the top trainees at the JRTC, it has come under increasing criticism as the push for democratization has accelerated in recent years. (31) For example, there is a perception that the judiciary lack democratic legitimacy, since they are placed in their positions solely as a result of their exams scores at the JRTC, and are subject only to the authority of the chief justice. (32) There has been a general lack of trust of the courts primarily because the processes are obscure and unknown, inaccessible to the public, and the decisions appear to be biased in favor of the affluent and powerful. (33) Also, there is a perception that judges are adept at interpreting legal doctrine, but lack of breadth and diversity of experience that a jury would employ in fact finding. (34)

      Another practice that is seen as compromising the integrity of the justice system is the special treatment given to former judges and prosecutors when they appear before the judges, known as...