During the last century, the main priority of judicial reform was defending judicial independence from politics and now is aiming for judicial democratization reflecting the global trend. People was recognized as object to be governed under authoritarian regime, however, rising participatory democracy, they claim and execute their rights in various area and judicial sector as well. To change cliquish and authoritative justice to transparent and democratic one, public participation in judicial processes should be requested. In accordance with the principle of popular sovereignty under Article 1 section 2, Constitutional law, jurisdiction comes from people and an institutional strategy should be provided to people as the sovereign to participate in judicial processes. Though citizen participation in criminal jury trial is being enforced, for the democratization of the criminal justice and regaining public trust, participation in judicial processes also secured from the preceding stage of a criminal trial.
The latest scandals within the prosecution agency raised public awareness of controlling the prosecutor’s exclusive power. In July, 2010, the prosecution announced to set up ‘Civil Committee on Prosecution’ and adopt 'American-style Grand Jury’ as part of reform plans. Following this reform plans, Civil Committee on Prosecution established in district public prosecutor's office and branch office now is facing its criticism as follows: 1. Cases only requested by prosecutor, 2. the committee is established under the district public prosecutor's office and branch office so it may harm its independence. 3. The committee selection procedure which is only made by chief prosecutor. 4. And its decision doesn't have binding force.
The prosecution clearly announced Civil Committee on Prosecution is temporary operated as a transition organization and American-style Grand Jury system would be adopted in future and to enforce this system, it should be transformed adequate for domestic circumstance in Korea. Therefore, detailed reform plans should be discussed on Civil Committee on Prosecution as it was introduced and similar to American grand jury system. To efficiently and democratically operate discretionary power of the prosecution, priori control should be subjected along with posteriori control which is currently being enforced.
First of all, functions of the Civil Committee on Prosecution Should be set in terms of concrete reform measures. For the priori control, violent crimes, corruption cases of high-ranking officials and financial economic crime, health and safety environmental crime and crimes related people in legal profession should be included to the matter determining whether or not to indict in the committee. Basically, Federal Grand Jury in U.S. may be required in felony cases and the use of grand juries is optional for state courts due to increasing of judicial costs and delaying in prosecution. From this point of view, allowing the committee's deliberation on limited cases under the existing law can be positively uated. Also to secure its effectiveness, the committee should examine cases which are requested by the prosecutor and the accuser, complainant as well. But the adequacy regarding the indictment should be requested only by the prosecutor according to the principle of national prosecution. A politically-sensitive case resulting in an acquittal brings on a public criticism against the prosecutor who executed the right of prosecution, so examining the adequacy of the case whether or not to indict by the committee can be expected to be used by prosecutor more positively.
And the solution to secure its independence should be sought. The committee must maintain independence from any other agency and only issues such as budget should be administered by an agency which the committee belongs to. The prosecution playing a leading role in introducing this committee should reform it with responsibility and solutions for securing its independence should discussed focusing on excluding influence of prosecutors on the committee member selection procedure and the process of the deliberation. This system was imposed for applying a common sense and vivid legal sensibility to the stages of the investigation and prosecution. Therefore, the method for selecting member of the Civil Committee on Prosecution should be changed to a lottery system for securing transparency and accountability. Like we can guess from “rubber stamp for prosecutors” or “ham sandwich indictment”, excluding influence of prosecutor is the critical factor which can tell grand jury system is failed or not. So for helping the committee member who has not knowledge of law, attorney to take charge of assisting the Civil Committee on Prosecution should be introduced and the committee member should be assisted to apprehend the fact relevance and legal issues.
And solutions for securing its effectiveness, legal binding for decisions made by the committee, attendance duty of the witness and giving approval designated attorney could be suggested. First, since decisions of the committee have no legal binding, it couldn't perform its duties as a controlling measure against exercise of prosecutorial power. In United States, the federal grand jury indictment is necessary to charge someone with a crime considered to be a felony and in Japan, by Prosecutorial Review Commission Act amended in 2004, the decision of Prosecutorial Review Commission has binding force. Considering the purpose of Civil Committee system which is preventing prosecutor from abusing its power by citizen, decisions made by the committee have binding force would be reasonable. Second, the grand jury subpoena authority is a key factor for securing effectiveness of grand jury. Given an example, in the case involving in U.S. former president Bill Clinton, the then President Bill Clinton should have testified before Federal Grand Jury by the subpoena. Under the current criminal procedure law in Korea, an investigation against a witness should be conducted voluntarily. The committee could compel a witness to attend by reason of and equitable procedure for the case. This condition can be stipulated in the civil committee on prosecution law as Japan did but considering coherence of criminal justice system, it should be discussed with amending criminal procedure law. Third, although the committee decides to prosecute a case against prosecutor's disposition, without prosecution's will to get the truth, the case hardly dealt with properly. So a designated attorney by a court should prosecute and support the case and it also can secure the effectiveness of the committee.
Furthermore, to ensure public participation in the preceding stage of a criminal trial, an opportunity should be given to the general public and also an institutional strategy for the disabled and social minorities' participation should be provided. Also realizing that the public participation is core factor of Civil Committee on Prosecution system, public participation should be encouraged and induced with customized promotional strategies. Like Alexis de Tocqueville saying, “as a gratuitous public school, the most efficacious means of teaching the people to rule well” is jury trial system, Civil Committee on Prosecution in Korea should be the school of experience which is able to teach democratic values to the people.