61 Pages Posted: 3 Aug 2009 Last revised: 1 Feb 2010
Date Written: January 24, 2010
Recent years have witnessed the widespread diffusion of the criminal jury trial across the globe. Considered by many to be foundational to participatory democracy, nations as culturally and geographically diverse as Mexico, Kazakhstan, and Japan are currently in the process of adopting mechanisms for lay participation in the adjudication of criminal cases. This Article investigates the historical origins of the jury trial’s global spread, focusing particular attention on the recent example of South Korea.
Identifying three “waves” of the jury trial’s global diffusion – the first driven by British Colonialism, the second by the Napoleonic Wars, and the third by the post-Cold War spread of political democracy – the Article notes that the jury trial’s introduction into Asia lies within this most-recent wave. It then offers a socio-political account of the origins of the Korean jury trial, finding that – contrary to existing accounts – its rise is best conceptualized as merely one rivet in larger atmospheric shifts occurring within Korean society at the turn of the millennium. The Article also explores the curious discord between escalating skepticism of the jury trial in those nations where it enjoys the deepest historical roots and its recent vast geographic expansion. Assessing the Korean system from within this inconsistency, the Article finds that – by adopting a unique, hybrid institutional design, which combines elements of the common law jury, the mixed tribunal prevalent in many civil law nations, and homegrown innovations – the Korean system endeavors to alleviate tensions inherent in existing iterations of lay adjudication. In so doing, it serves as a potential model for nations allured by the democratic promise of vesting ordinary citizens with judicial authority, but reticent to adopt either of the two most-prevalent, yet widely-discredited, institutional mechanisms thereof.
The Article then attempts to carefully unpack how the Korean jury trial system contrasts with existing systems, especially those in the United States and Western Europe. In addition, it identifies a range of possible critiques of the Korean system and assesses their relative weight from a comparative perspective. The Article finds that – while significant – the Korean system’s weaknesses are generally comparable to the well-documented afflictions of existing systems. Finally, the Article offers a brief exploration of the ways in which the introduction of the jury trial in Korea might have broader effects on the nation’s legal system: by enhancing systemic legitimacy, by enabling a new avenue for doctrinal development, and by shifting bargaining power to criminal defendants.
Keywords: Jury Trial, Juries, Korea, Asia, Globalization of Law, Legal Transplantation
JEL Classification: K33, K40
Suggested Citation: Suggested Citation
Park, Ryan Y., The Globalization of the Jury Trial: Lessons and Insights from Korea (January 24, 2010). American Journal of Comparative Law, Summer 2010. Available at SSRN: https://ssrn.com/abstract=1440405