CRIMINAL PROCEDURE LAW - SOUTH KOREA

The Code of Criminal Procedure, enacted in 1954, governs criminal procedure. This code retains the characteristics of the continental legal system to a considerable extent. However, it has also adopted some essential elements of Anglo-American law. They include: the strict requirements of obtaining judicial warrants for compulsory measures: the reinforcement of the system of the state-appointed counsel: the emphasis on the adversarial system to allow the prosecution and the defense to play the leading roles at a trial : the rejection of hearsay evidence as matter of evidence rules.

INVESTIGATION

Warrant of Detention Needed for Arrest The investigative authorities can arrest a suspect for detention only when they have acquired a warrant of detention issued by a judge. A judge will issue a warrant only if the suspect has no domicile or if there are reasonable grounds to believe that the suspect may attempt to escape or destroy evidences. However, if one is apprehended in the process of committing a crime or in certain emergencies, a warrant may be obtained after the arrest. A request for the issuance of a warrant may be made only by a prosecutor

Rights of the Accused Upon arrest, a suspect is entitled to be informed of the right to remain silent and the right to counsel. A detained suspect will be released if the suspect is not transferred to the public prosecutor within ten days. The prosecutor must release a suspect unless an indictment is instituted within ten days from the date of the custody. When the prosecutor needs to conduct further investigation, a judge may extend the period of detention by another ten days. The present Constitution provides the detainee with the right to request a court review of the legality of the detention before an indictment is instituted

INDICTMENT

Public Prosecution With neither a grand jury system nor private prosecution, the public prosecutor has the exclusive authority to institute a criminal action. To initiate a criminal action, the public prosecutor must state the name of the accused, the alleged crime, the alleged facts constituting the offense and the applicable statutory provisions in a written indictment filed with the court.

Discretionary Non-prosecution The prosecutor has the discretionary power not to bring a case before the court when the prosecutor believes that the alleged facts do not constitute a crime or that there is insufficient evidence to prove the case. The prosecutor is also authorized to grant a suspect a reprieve from indictment in consideration of the suspect's age, character, the likely motive, or other circumstances even if the suspect may have committed the crime.

Summary Indictment The prosecutor is authorized to bring a case before the court by a summary indictment when the offense is punishable by a fine. In such a case, the judge will give a summary judgment without holding public hearing(s) unless it is inappropriate. The indicted can request an ordinary trial within seven days from the date of the notification of the summary judgment

BAIL

Upon indictment, the accused has the right to be released on bail. A request for bail is permitted, except in certain circumstances prescribed in the Code of Criminal Procedure. However, the court may permit a release on bail of its own accord regardless of the exceptions prescribed in the Code of Criminal Procedure.

TRIAL

Jurisdiction

Cases which involve offenses punishable by a death penalty, life imprisonment or an imprisonment for not less than one year are tried by a collegiate division of three judges of a District Court or a branch court. All other cases are heard by a single judge

Hearing Procedure In a criminal action, a copy of the indictment must be served to each defendant or counsel thereof at least five days before the first session of a trial. A trial cannot proceed in the absence of defense counsel when the defendant has been charged with an offense punishable by a death penalty or a prison sentence of three years or more. Moreover the trial judge must appoint defense counsel in certain circumstances, such as in cases of an indigent defendant. Trials are open to the public, except in those rare instances where national security, public morals, or the privacy of individuals are at risk. The defendant has the right to remain silent during the hearing and shall not be physically restrained in the courtroom

JUDGEMENT

In Korea, without a jury system, only a judge is the fact-finder. If the defendant is found guilty, a sentence is entered. A guilty judgment depends on whether the facts against the defendant constitute a crime and whether the evidence is sufficient for conviction. In entering the judgment, the court must state the facts constituting the crime, the relevance of evidence, and the applicable laws. If the parties have argued legal issues material to the offense or to severity of the sentence, the court must express its opinion on these questions

APPEAL

Either the defendant or the prosecutor may initiate an appeal against a judgment of first instance for a review of law or fact. Appellate tribunals can also alter the sentence. The grounds for appeal to the Supreme court are specifically prescribed in the Code of Criminal Procedure.

SUMMARY TRIAL PROCEDURE

Some minor offenses, which are punishable by fines of not more than 200,000 Won(equivalent to about US$ 180) or detention for less than 30 days, may be brought before the court without a formal indictment. A summary trial for minor offenses is instituted by the chief of a local police station. If the judge considers the summary trial inappropriate, the case may be dismissed. The chief of a local police station should then forward the case to the prosecutor's office.

The defendant is entitled to request an ordinary trial if the defendant is not satisfied with the judgment. In the summary trial, the strict rules of evidence may be waived.