Evidence Law in South Korea
Introduction
South Korean evidence law is governed primarily by the Criminal Procedure Code (형사소송법, 1954, comprehensively amended 2007) and the Civil Procedure Code (민사소송법, 2002 consolidation). The evidence framework reflects the civil law inquisitorial heritage, though the 2007 criminal procedure reform introduced significant adversarial elements. The confession rule, hearsay restrictions, and digital evidence admissibility are central features of Korean evidence doctrine.
Criminal Evidence Law
Confession Rule
Article 309 of the Criminal Procedure Code provides that a confession obtained through torture, assault, threat, prolonged detention, or deceptive means is inadmissible. Article 310 further provides that a confession alone is insufficient for conviction — corroborating evidence is required (the “confirmation rule” or bohwang beopchik). This rule, adopted from Japanese law, prohibits conviction based solely on the defendant’s confession, even if made voluntarily in court.
Hearsay Rule
Article 310-2 establishes the general prohibition on hearsay evidence. Exceptions include:
- Statements made under oath before a judge (Article 311)
- Statements to prosecutors (Article 312)
- Expert reports (Article 313)
- Business records (Article 315)
- Statements of unavailable witnesses with sufficient reliability guarantees (Article 316)
Illegally Obtained Evidence
The Supreme Court has established an exclusionary rule for evidence obtained in violation of procedural requirements. The leading case (Supreme Court, 2007Do3061) held that evidence obtained through unlawful search and seizure is inadmissible unless the violation is unrelated to the evidence obtained.
Digital Evidence
Digital evidence admissibility has evolved significantly. The Digital Evidence Management Guidelines require:
- Preservation of metadata and hash values
- Chain of custody documentation
- Forensic imaging of storage media (rather than selective collection)
- Expert testimony on authenticity when challenged
The Supreme Court (2014Do10978) held that digital evidence is admissible if the original file’s integrity is maintained and the collection procedure complies with warrant requirements.
Civil Evidence Law
The Civil Procedure Code adopts a free evaluation of evidence principle (jiyusimjeung): the court determines the probative value of evidence according to its free conviction (Article 202). Key features include:
- Documentary evidence is preferred and given presumptive authenticity (Article 356)
- Witness examination requires prior submission of written statements (Article 367)
- Expert evidence may be appointed by the court or by the parties
Expert Evidence
Expert evidence in criminal and civil cases is governed by the respective procedure codes. The court may appoint expert witnesses, and parties may submit expert reports. The National Forensic Service (NFS) provides scientific analysis for criminal investigations.
Conclusion
South Korean evidence law balances the civil law tradition’s emphasis on judicial fact-finding with constitutional protections for criminal defendants. The 2007 criminal procedure reforms and the growing role of digital evidence continue to reshape evidentiary practice.