Section 1. Background and Necessity of Study

1. Establishment of Concept of “Victim Participation System” in the Trial Procedure as Plan for Institutionalization of Victim Participation.
While precedent studies have indicated participation of victims as a separate independent ‘system’ and tried to explore its substance, they did not explain why it is participation and how it is separated from engagement. Since it is specified as participation of victims under criminal procedure or crime victim protection act, this study will indicate it as victim participation system.

2. Expansion of Victim Participation in Investigation Procedure and Trial Procedure
The reason why the victim fails to raise their voice in the criminal procedure up to now and why such position and suggestions have not been reflected is because of the thought that the procedure is rather disturbed by personal feeling such as revengeful thought and sympathy of victim in the criminal procedure while it should be fair. Accordingly, what it matters is how to guarantee and expand participation of victims to the direction of contributing to achievement of original goal of criminal procedure while it is not deteriorated into the arena of personal feeling.
What was considered as the starting point of this study in the introduction was how to secure position of crime victim in criminal judicial system, to guarantee participation of victims as much as possible in the criminal procedure in the plans for institutionalization, and to institutionalize concrete right for this.
In closing the study, I think it might be desirable to ensure in the institutionalization of victim's right that victims can present their an opinion while receiving information on judicial process and that they can raise objections or questions in this process. Detailed methods and procedures should be more clarified in order to substantially assure right of victims to present opinion in judicial process which has been accepted in the current law. In the end, right of victims shown above may be guaranteed surely through his representative, lawyer, rather than the victims themselves.

Section 2. Present Status of Victim Participation in Criminal Procedure

In the existing law, protection, support and participation of victims in the investigation and trial procedure has significant implications, when examining various institutional systems for participation of crime victim in the criminal procedure. But, contents on position and legal right of crime victims are scattered through laws, lower legislations, rules and guidelines, and in some cases, specified differently depending on whether it is investigation procedure or trial procedure. Not a few legislative problem is also identified as basic right is specified in guidelines only while it should be indicated in fundamental laws. Various plans for protection and support of victims in the investigation stage are preliminary and have important meaning. In the trial stage, victims are just specified to exercise their right to present their opinions in the judicial process as the witnesses, but not recognized to have the right to receive assistance of the lawyer or right to object questions except for specific crimes. More than anything else, the victims are not recognized to have right of notification, right to receive assistance from the lawyer, right to object or right to present independent evidence.
Crime victims want to have their opinions reflected in the criminal procedure, to participate in the cases, and to have more information on results, and to be treated more fairly and respectfully. The position of crime victim is not weakened or treated differently in the investigation procedure from trial procedure, as the basic principle for participation of crime victims in the criminal procedure.
Second, the right to investigate by video devices, read and copy rights of victim and to present an opinion are recognized only in the trial procedure, not in investigation procedure. As long as there is no reason to regard the position of crime victims differently in the investigation procedure, their rights should be also protected in the investigation procedure. It is required to deliberate on improvement plans in practice as well as concrete legislation plans.
Third, while active participation of crime victims contributes to securing actual reality and peace in community, it may collide against the dominant principle of guaranteeing defense right of the accused. In this regard, it is required to explore various plans to secure rights to the extent that participation of victims may not undermine position of the accused.
Fourth, encouraging participation of victim actively in the procedure while expanding their rights, may cause reaction of work burden on the criminal judicial authority or delay in litigation procedure in terms of economy of litigation. In the end, it seems necessary to compare benefits of participation of crime victims and delay in procedure and to examine which one we should recognize dominant position on to be more effective and desirable for achieving overall goals of criminal justice.
Fifth in this regard, we should consider the fact that active participation of crime victim works very positively on discovery and collection of evidence.

Section 3. Meaning of Victim Lawyer System and Necessity of its Introduction

In the existing law, the public defender of the victim has the position as the representative of the victim, but it is not clear whether their right to participate in litigation independently is recognized or not. Whether to recognize the right of victim's lawyer to participate in litigation independently is the issue regarding the position of victim and right of his lawyer, and it should be adjusted, considering the right of the lawyer of the suspect and the accused in discussing the right of victim's lawyer. Right to participate in questioning of victim by the investigation agency should be also guaranteed, in response to independent questioning participation right of the lawyer of the accused or the suspect. For general victims in addition to victims of sex crime, they should be also guaranteed of their right to receive assistance from lawyer and for this purpose, the lawyer of the victim should be recognized to have the right to attend the court or to participate in witness questioning procedure.

Section 4. Results of Comparative Law Examination of Victim Participation System

Victim participation system of Japan is the consultation type between the prosecutor and the victim, which has maintained basic framework of existing criminal procedure, but does not recognize position of victims as the active entity. It is uated as the balancing model of the system of victim to present an opinion in judicial process in Japan.
In Germany, expression of will of victims to participate in trial procedure itself is recognized from investigation stage, trial procedure to after sentence of judgment. In ordinary criminal cases, participation of victims can be made in 2 methods. That is, the case when the person with right of incidental arraignment expresses an opinion to participate in trial to the prosecutor and the case when he presents opinion to participate in trial to the court of the lawsuit.
In the former case, the prosecutor should submit the expression of the will of the person with right of incidental arraignment to participate in the trial along with the petition of appeal and opinion on the incidental arraignment, while in the latter case, to express the will of participation to the court in writing.
In Japan, the victim participation system is the system in which the victim or his lawyer applies for participation to the prosecutor, who will in turn apply to the court if he deems it suitable as it does not serve as an obstacle to sustainment of a public prosecution. When the court approves participation, the participant and his lawyer sit next to the prosecutor, directly question the accused and ordinary testimony in the court on the condition of approval from the prosecutor and the court, and state separate sentencing opinion after the statement of opinion by the prosecutor. Since participation of victim in the trial, independently from the trial, may collide against the sustainment activity of public prosecution by the prosecutor in reality, it is not allowed in principle. That is, the primary determination on victim's participation is given to the prosecutor, and if the prosecutor deems it suitable not to apply, it will not be applied. In addition, independent prosecution, appeal and application for witness are not allowed. Suggestion and verification for the indictment by the prosecutor may be contradictory to those of participants, serving as an obstacle to verification of the prosecutor, so that it is allowed to question the witness only for the ordinary matter not for criminal fact.
It is well known that there are many negative opinion regarding introduction of victim participation system in Japan. Main points of criticism are the concern over delay in procedure and that the court may be deteriorated into the arena of private revenge of the victim.
In particular, as a result of examination on operation status of Japan and Germany, the following features were identified.
First of all, what is peculiar in the victim participation system of Japan is the operation of public defender of victim system by Law Terras. Law Terras is the institution that takes charge of official procedure of public defender system for victim, the participants. If the victim asks for selection of a public defender to Law Terras, the candidate is designated among the lawyers under contract with Law Terras, and such candidate is notified to the court unless the request of victim for selection of lawyer is illegitimate. The court selects the public defender for the victim upon receiving a notice from Law Terras. Like this, designation task of public defender is the main task of Law Terras and is made in regular consultation with Japan Lawyer Association. Law Terras is set to listen to the opinion of victims and to designate lawyer, different from victim lawyer system of ordinary criminal cases in Japan. As of 2012, the number of lawyers who are contracted as the lawyer for victim participation with Law Terras is known to be 3099 persons.
In Germany, the victim obtains almost no information on lawyer in the investigation process in terms of its operation status. Rather, victims get to contact the lawyer through crime victim support groups like Weisse Ring.
It is difficult to expect the role of independent administration agency that enables continuous and organic participation of lawyer along with easy access by victims in connection with the private sector and the legal circles like Law Terras, from existing organizations like Korea victi system or Legal Aid Corporation.
While the victims are included as the targets of cases that may obtain assistance from Korean Legal Aid Corporation at present, it is required to design how to organize personnel and physical conditions required for operation of public defender system with regard to introduction of this system in a way that suits the situation of Korea. In this regard, comparative discussion may give much suggestions regarding who will be the main entity of operation of victim lawyer system and how to select the public defenders.
In the mean time, the concern over delay of procedure was found to be realized in the incidental arraignment procedure of Japan as a result of comparative studies. According to this, about 18 more weeks are required than general procedure if it is under incidental arraignment procedure from investigation procedure to the commencement of trial.
In addition, innocence rate was found to be lower in incidental arraignment cases than in general criminal cases, while the sentence was found to be higher. Such difference indicates the concern over tendency of severe punishment, arena of revenge by victims, or delay in procedure due to actual introduction of victim lawyer system.

Section 5. Plans for Institutionalization of Victim Participation in Trial Procedure

1. Needs for Legislation of Victim Participation System
Presidential Committee on Judicial Reform already declared that the protection of victim's right should not violate the defense right of the accused, which is the basic framework for institutionalization of victim participation or expansion of victim participation.
In comparison of laws of various countries, no cases were identified which allowed intervention or participation of victims extensively beyond the basic position of the accused, and there are continuous adjustment with position of accused. But each country has some institutional difference regarding to which extent it will introduce and operate the system.
In terms of comparative law review, there was objection to the victim participation system in Japan under the cause that punishment of crime and criminal should be public given the essence of criminal procedure, due to various side effects of active participation of victims such as delay in procedure or concern that it will become arena of private revenge. On the other hand, the victim participation system was legislated, accepting the fact that it will become more easier to realize public interest through participation of victim, realization of ideology of victim protection. But as demonstrated through the argument for and against this legislation process, it is understood to institutionalize participation of victim and to focus on prevention of confusion in criminal procedure by allowing the participation of victim within restricted extent rather than reinforcing the right of victim. More than anything else, independent position is not recognized to the participating victim in the trial. First of all, the victim is not recognized to have the function to passively sustain the prosecution of the prosecutor, and the entities of litigation in the trial procedure are still prosecutors and accused. Due to this, victim participation system of Japan does not bring change to the position of victim but is understood as the cooperation model between the prosecutor and the victim. The timing to express the will to participate in the trial is after prosecution While participation can be applied in the reorganization procedure before trial, no participation is allowed even with permission of participation from the court.
In Germany, expression of will to participate in the court for ordinary criminal case is from the investigation stage. It is because expression of such will in the investigation procedure may result in early agreement on compensation for damage between the victim and the accused or utilization as the advantageous cause of weighing of an offense to the accused. In addition, Germany guarantees the right to counsel in writing to all victims.
This study aims to present the plans for legislation of crime victim participation system as shown below by summarizing the results of comparative law study, results of opinion survey among professionals, present status of investigation procedure and trial procedures as well as precedent literature research.

2. Plans for Institutionalization of Crime Victim Participation System

A. Crimes Subject to Crime Victim Participation System

Whether to expand the crime subject to victim participation system to all crimes where personal victim exists or to restrict it to the specific crime where needs of victim to participate is high as a result of abstract examination is the issue that belongs to legislation discretion. In particular, given that it is inevitable to undergo trial and error with regard to operation of this system in Korea where this victim participation system is introduced for the first time, it seems suitable to restrict it to the specific crime only at the initial phase of system introduction, and to expand the scope of target crime further when the positive aspect is identified and highlighted in the course of operation of victim participation system. In addition, with regard to the cases for which adjudication was applied, the case receiving prosecution from a High Court of Justice will be subject to victim participation.

B. People with Participation Right

In the crime victim participation system, the persons with participation right include 1- the victim of specific (serious) criminal offense, 2- the legal representative of the victim, 3- spouse, lineal relative or brothers and sisters if the victim has died or has serious disability mentally or physically, 4- lawyers entrusted for participation from the victim, his legal representative or spouse.
As indicated earlier, however, if the case, prosecuted with indictment decision from High Court in the case applied for adjudication, is to be included in the target crime of the victim participation, the victim who made decision of prosecution will be included in the scope of persons with participation right.

C. Participation Procedure

1) Participation Period
In the victim participation system, the timing of participation is the trial procedure since it is the time when it is required to investigate the fact regarding the criticism, responsibility and active defense activities of the accused. Provided, however, that there is no reason to allow the participation of victim in the trial preparation procedure.

2) Timing of Application for Participation
Regarding when the crime victim should apply for participation, it should be regarded to be possible in any stages of trial procedure. There is no reason to restrict the period for participation to the trial procedure, given that the criticism may be imposed on the victim in the investigation too. Accordingly, the period for participation in trial procedure is any time from investigation procedure, trial preparation procedure to the trial procedure in progress.

3) Method of Application for Participation
Regarding whether application of trial participation is to be made in writing or orally, it will be prepared in writing in principle for procedural clarity. Provided, however, that, it will be made in writing when applying for participation in trial procedure at the investigation procedure or trial preparation procedure. If applying for participation at the trial while the trial date is in progress, it should be allowed to participate by expressing the will to the justice department directly. Of course, the expression of participation by the victim should be indicated in the trial protocol.

D. By Way of Prosecutor

As shown above, the victim may apply for participation at any time during the trial procedure in the plans for institutionalization of victim participation. Accordingly, it may not be easily understood that the victim or his lawyer should apply to the prosecutor, who will deliver the intention of victim to participate to the court again while the justice department is present for hearing of the case in the court. More than anything else, given the participation activities of the lawyer of victim in the court, it does not consistent with the reality that the lawyer of the victim directly engages in litigation procedure directly to the justice department not by way of the prosecutor in the court. Application of victim for participation at the trial procedure should be directly made to the court and this should be indicated in the trial protocol.
But, if the victim applies for participation in the investigation procedure, that is, if the period of application for participation is allowed up to the investigation procedure, it may be applied to the prosecutor in advance, who will send it with attachment of the petition of arraignment and his opinion on the application of victim for participation to the court.

E. Decision of Courts

1) Obligatory Approval of Court
The court permits the application of the victim for participation at the trial (or by prosecutor in case of investigation procedure), and it becomes issue whether to decide this as the matter for discretionary approval or obligatory approval. It should be determined from the institutional purport of the victim participation and should be made as matters for obligatory approval given the purport of victim protection through victim participation and restricted recognition to the specific crime.

2) Dissatisfaction to Approval Decision of Court
When the victim applies for participation, the court will approve. Accordingly, there will be decision of court not to approve participation and this should be handled suitably. That is, decision of court not to approve participation should be argued with immediate appeal.

F. Extinction of Right of Victim to Participate in Procedure

If the participating victim who was allowed by the court to participate at the trial has died, the right to participate in procedure becomes extinct. And the purport of victim participation system in trial procedure is to participate at the trial procedure and to clarify the facts disadvantageous to the victim including shifting of responsibility to the victim. But the victim may reconcile with the accused anytime at the trial stage, and the accused also wants to have advantageous causes for sentencing recognized by reconciling with the participating victim. Accordingly, if the reconciliation is reached between the accused and the participating victim in the trial procedure, it constitutes achievement of fundamental goal of victim participation system, and thus extinction of right to participate in procedure.

G. Right of Victim

1) Permission to Read and Copy Investigation Records for Participating Victim
Since it is the right to be protected for victims at the investigation stage, it should be allowed to read and copy investigation records for participating victims

2) Guarantee Right of Participating Victim for Direct Questioning of Witness on Facts Charged
Right of participating victim for questioning of witness is the indispensible core right in the victim participation system and includes facts charged as well as ordinary facts to cope with defense right of the accused. In this case, right of direct questioning of witness is the right under litigation act that directly belongs to participating victim, guaranteeing direct witness questioning right.

3) Right of Interrogation of the Accused
Interrogation of the accused by the participating victim requires permission from the court and in this case, the scope will include the facts charged as well as the ordinary facts.

4) Right to Present an Opinion
Grant the right to present an opinion in the court to the participating victim in that it aims to protect the actual right of victim and to overcome the limit of the right of victim to present an opinion in the court according to Article 294 (2) of the current Criminal Procedure Code. In this case, considering the side effects of victim participation system, that is, solution of retribution of victim and severe punishment trend, statement of opinion on sentencing will not be recognized.

5) Right to Present in Trial Preparation Procedure
There is no reason to accept the right to present in the trial preparation procedure to the victim, comparing the fact that interrogation(questioning) of witness or the accused is not allowed in the trial preparation procedure and that trial preparation procedure other than trial date is the procedure of the court of the lawsuit preparing for interrogation at the trial date.

6) Recognition of Public Defender System for Victim
Public defendant system is the system to protect the right of participating victim for litigation who cannot protect by himself, and is the institutional device indispensible to assure effectiveness of victim participation system. But regarding how to specify this, public defender selection system is already established in the Article 33 of Criminal Procedure Act. In addition, given that the right of victim to receive assistance from the lawyer is the statement right system of the victim under constitution, it is required to regulate the victims for the person with right to select a public defender in order to clarify this.

H. Notification of Victim's Right

Successful implementation is assured by notification accompanying regulation on guarantee of right of victim. Right of the victim to present an opinion can be also exercised only after receiving notification.
It is required to stipulate the primary institution in charge of the victim to notify the existence of right to present an opinion. This will enable participation of the victim, and in turn, guarantee the exercise of such right.

I. Crime Victim Participation System and Right of Victim to Present an Opinion in Judicial Procedure

Relation with the right of crime victim to represent an opinion in the judicial process under current Criminal Procedure Act is also one of matters in institutionalization of crime victim participation. Right of crime victim to present an ordinary opinion is specified in Article 249 (2), while the right to present an opinion on specific crime may be newly legislated and regulated. Right of victim to present an opinion in judicial process still has independent meaning in that there is no restriction in target crime.
In conclusion, as a result of examination on whether the crime victim participation system may result in shift of criminal justice paradigm, it is not highly likely. On the other hand, there is a concern that it may be transformed to the criminal justice system that may be more burdensome to the accused in which private calling to account by the victim may occur along with public responsibility of the criminal and exercise of existing right of government on punishment. This study also carefully suggests the concern that burden of the accused may be aggravated due to participation of victim in the traditional criminal justice system. Accordingly, while this study does not fundamentally object to introduction of victim participation system, it suggests that the system should be configured to contribute to revealing the truth with active cooperation of victim to the criminal justice system, and to recover trust on jurisdiction ultimately and that the participation of victim not should be planned in the direction of reinforcing punitive criminal justice nor used as the tool to revenge the accused rather than recovery emotion.