Social demands to secure democratic legitimacy and build trust in South Korea’s military justice system have long been raised. However, the system still does not meet these needs, while reform efforts have often appeared as mere attempts to deflect ...
Social demands to secure democratic legitimacy and build trust in South Korea’s military justice system have long been raised. However, the system still does not meet these needs, while reform efforts have often appeared as mere attempts to deflect criticism.
Proposals to introduce the jury trial in court-martial proceedings are not free from such criticism. Although the introduction of jury trials is intended to secure the independence and fairness of military proceedings in order to build public trust, the details of this system do not adequately support such a purpose.
The jury trial system in court-martial should not simply be introduced mutatis mutandis from the civil law system. In addition, ambiguous concepts such as the nature of the military should not hinder the proper function of a jury system. Ultimately, it is necessary to create proper conditions for the introduction of a jury system in court-martial through in-depth consideration and review.
Accordingly, this thesis reviews challenges relating to the introduction of a jury system in court-martial, through comparative legal review and literature analysis. It then concludes with a proposal for reform.
The scope of cases that may be subject to jury trial in court-martial should not be defined simply by reference to the civil law jury system or vaguely designated through lower-level regulations. Rather, it is necessary to set specific standards by law in consideration of the type of crimes occurring in the military, frequency of occurrence, and separate categories of crime punishable under the Korean Military Criminal Act. In addition, crimes designated as subject to a period of imprisonment for three or more years and military crimes as defined in the Military Criminal Act may at present be appropriately brought within the scope of jury trials.
Jury eligibility and composition in military trials need not be limited to military personnel or higher ranking officers. There is no particular reason why only military personnel should qualify as jurors; on the contrary, such restrictions may result in injustice, through being linked to the idiosyncrasies of the military system.
Likewise, the composition of jurors needs to be modified to include all ranks of the military, to secure representativeness and produce fair judgments. Ultimately, providing a means to monitor and regulate the military justice system by allowing citizens to participate as jurors in court-martial will be a concrete measure to secure democratic legitimacy and build trust in military law.