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Korean Criminal Procedure

최종 수정일: 7월 3일

The following is the outline of it.

 

Investigation and Indictment


The Police does the initial investigation of crimes.  In principle, a suspect is put under investigation without being arrested or detained. However, under certain circumstances, the police can arrest or detain a suspect after they obtain a warrant from a judge. If a suspect is apprehended while committing a crime, or if other urgent circumstances are present, a court warrant can be issued subsequent to the arrest.


 

If the police finds that the suspect is not guilty, they can close the case without sending the case to the prosecutor. If the police finds that the suspect is guilty, they should send the case to the prosecutor. After reviewing the case, the prosecutor decides whether to indict the case or not.


The prosecutor may indict a case for the regular trial or summary proceedings. The prosecutor indicts a case by summary proceedings when it is deemed that the offense is punishable by fine. In such a case, the judge issues the summary order on the basis of document evidence without holding a hearing. If the judge deems it inappropriate to issue the summary order, he can refer the case to regular trial. The accused may also request regular trial within seven days from the receipt of the summary order.

The defendant may request the jury trial other than judge trial. The verdict of Jury does not bind the judge. However, it is usual the judge follows the verdict.


Right to Counsel

 

The accused is entitled to receive the assistance of counsel for his/her defense in the course of investigation as well as trial proceedings.


Request for Warrant of Detention and Examination of the Suspect

If investigative authorities, after arresting a suspect, seek a detention warrant, the suspect, their defense counsel, legal representative, spouse, direct relative, sibling, family member, cohabitant, or employer may request the judge to examine the suspect before issuing the warrant. The prosecutor or police officer must inform the suspect of this right and record whether an examination was requested.


Should the authorities request a detention warrant for a non-arrested suspect, the judge may independently decide to examine the suspect if necessary before issuing the warrant.


A judge presides over the suspect's examination, allowing the suspect and their defense counsel to fully express their views on the alleged offense and reasons for detention. Considering the examination results and the investigative authorities' records, the judge determines if there are sufficient grounds for detention and if the situation warrants it.


Review of Legality of Arrest and Detention, and Release on Bail


The suspect, or any related individuals, may petition the competent court to examine the legality of their arrest or detention if the warrant was issued unlawfully or if significant changes have occurred since the detention. Upon a swift review, the court shall order the release of the detainee if just cause is presented.


The court may also authorize the release of the accused, either upon their request or ex officio, provided bail is posted. Instead of bail, a written promise and a surety insurance policy may be accepted. Once bail is granted, the court typically mandates that the defendant stay within the confines of their local area or residence.

 

 

Court Hearing


The hearing takes place in the courtroom on the scheduled date and is open to the public. It begins with the judge requesting personal identification details from the accused, such as their name and date of birth. This is followed by the prosecutor's statement outlining the core of the accusation, the accused's plea, the examination of evidence, the prosecutor's opinion, the defense counsel's closing argument, and the accused's final statement.


If the defendant pleads not guilty, multiple hearings may be scheduled, typically one month apart.


Once all the aforementioned procedures have concluded, the court will close the hearing and usually render a judgment approximately one month later.

 


Admissibility of Evidence and Burden of Proof

 

The interrogation record of a suspect prepared by the police or prosecutor shall be admissible as evidence, only when the defendant admits its contents at a trial. 

 

It lies upon the prosecutor to prove guilt of the accused. The court determines guilt or innocence of the accused on the basis of evidence produced by the prosecutor and defendant.

 

Confession of the Accused


An accused cannot be declared guilty solely on the basis of a confession. A confession obtained through torture, violence, threats, unjustly prolonged detention, or if it is suspected to be involuntary, should not be considered valid evidence of guilt.


Furthermore, the accused has the right to remain silent and is entitled to refuse to answer any questions.

 

Judgment


If guilt has not been proved beyond a reasonable doubt, the court declares the accused not guilty. In such a case, the accused is entitled to claim compensation as provided by law. Once the accused is found guilty, the court imposes punishment like imprisonment, fine, and confiscation. Imprisonment and fine can be suspended by the court.

 

Appeal Proceedings


Both the accused and the prosecutor have the right to appeal the trial court's judgment within seven days of its issuance. If the accused files an appeal and the prosecutor does not, the sentence cannot be more severe than that of the original judgment. Furthermore, appeals against the decisions of the court of appeals can be submitted to the Supreme Court within seven days following the issuance of the appellate court's judgment.

 


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