[Legal Tips from Korean Lawyers] Brief Summary of Korean Criminal Procedure
Are you about to face a police investigation or planning to file a criminal complaint or accusation as a victim of a crime? Here’s a brief explanation of the criminal procedure in South Korea, outlining the steps that occur when a crime is committed.
1. Investigation Stage (Police - Prosecution)
• Crime Detection: A crime is detected when the police or prosecution become aware of it through a report, complaint, accusation, or evidence of the crime. A complaint is filed by the victim, while an accusation is filed by a third party informing the police about the suspect’s crime.
• Commencement of Investigation: An investigation is initiated, involving questioning of the suspect and evidence collection. During this process, the suspect has the right to give a statement, and the authorities verify the criminal allegations based on the evidence. Various investigation steps, such as statements from the complainant, questioning of witnesses, and confrontational interrogations, may take place as needed. If you are called in for questioning, it is recommended to bring a personal stamp (seal) instead of using fingerprint ink, as the ink can be difficult to remove. Once the investigation begins, the accused becomes a ‘suspect‘.
• Decision on Detention: If the investigation requires the detention of the suspect, the authorities may request an arrest warrant from the court. If the warrant is issued, the suspect is detained for further investigation.
• Objection to Investigation Suspension (수사중지) or to a decision of non-indictment (불송치결정): If an investigation is suspended or is not indicted of the case you have complained, you can file an objection.
2. Prosecution Stage (Prosecution)
• Decision to Prosecute: Based on the investigation’s results, the prosecutor decides whether to prosecute. Prosecution means formally filing a lawsuit, initiating a criminal trial where the suspect will face a judge’s decision.
• Prosecution: If the prosecutor believes there is sufficient evidence, the prosecutor submits an indictment to the court to begin the trial.
• Non-Prosecution: If there is insufficient evidence or the allegations are unfounded, the prosecutor will dismiss the case with a decision of “no charges” or a “suspension of prosecution.”
• Summary Order: In less severe cases, the prosecutor may request a summary order that imposes a fine instead of a full trial. While the suspect can accept the fine, they also have the right to object to the summary order and request a formal trial.
• Appealing Non-Prosecution: If you disagree with a non-prosecution decision, you may appeal within 30 days of receiving the notification.
3. Trial Stage (Criminal Trial)
• Preparation for Trial: The prosecutor and defense prepare the necessary evidence and materials for trial. At this stage, the suspect becomes the defendant. The prosecutor (plaintiff) presents the case, while the defendant and their attorney (defense) work to counter the charges, with the judge hearing both sides. The victim’s attorney can also participate in the trial.
• Trial: In court, the arguments of both the prosecutor and the defense are heard, and witness examinations and evidence investigations are conducted.
• Final Argument: After the trial, the prosecutor and defense present their closing arguments.
4. Sentencing
• The court reviews all the evidence and testimonies and delivers a verdict, determining the defendant’s guilt and imposing a sentence if found guilty. If the defendant is on bail or has not been detained, and receives a prison sentence, they may be taken into custody immediately after sentencing (법정구속).
5. Appeal Stage
• Appeal/Final Appeal: If the defendant disagrees with the verdict, they may appeal to a higher court. If they are dissatisfied with the second court’s decision, they can file a final appeal to the Supreme Court. Each level of the court reviews the case: the first and second instances are based on facts, while the third instance is based on legal issues.
• Finalization of the Sentence: If no appeal is made or the Supreme Court affirms the judgment, the criminal case is concluded. Defendants who are in custody during trial or sentenced to imprisonment will be transferred from detention centers to prisons when the case is concluded.
6. Execution of Sentence
• The sentence is executed according to the final judgment. This may involve probation, payment of fines, or imprisonment.
During the criminal process, suspects and defendants have the right to legal representation and the right to remain silent. Any statements or evidence collected during the investigation and trial must be accurate, and all testimonies must be voluntary, not coerced.
In criminal procedures, evidence must have the probative power to establish the truth of the charges “beyond a reasonable doubt.”
There is also a legal principle known as “in dubio pro reo,” which means that if there is doubt about the defendant’s guilt, the judgment should be made in favor of the defendant, resulting in an acquittal.
Furthermore, according to the “presumption of innocence” principle, the defendant is presumed innocent until proven guilty by a final court ruling.
Criminal procedures are not only complex and challenging but also must be strictly followed according to legal principles. Therefore, it is highly recommended that you seek the assistance of a defense attorney when going through the criminal process.
In addition to criminal procedures, alternative dispute resolution methods such as mediation and arbitration can be used in intellectual property disputes.
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