Criminal Procedure in South Korea

Introduction

South Korean criminal procedure is governed by the Criminal Procedure Code (형사소송법, CPL) , enacted in 1954 and extensively revised in 2007. The 2007 reform — the most significant in Korean criminal justice history — shifted the system from an inquisitorial model toward an adversarial system, strengthening defendant rights, limiting prosecutorial power, and enhancing judicial oversight. The procedure is constitutionalized through Articles 12 (due process) and 27 (fair trial) of the Constitution.

Investigation Phase

Investigation Authority

Historically, prosecutors held investigative primacy — directing police investigations and conducting their own inquiries. The 2020 prosecutorial reform limited prosecutors’ direct investigative authority to specific categories (corruption, economic crimes, elections, etc.), granting police primary investigative authority over most offenses.

Arrest and Detention

• Arrest warrant: Required for arrests, except for flagrant offenders (caught in the act) or emergencies (Article 200-2)
• Detention warrant: Required for pre-trial detention; the court must review necessity within 48 hours of arrest
• Maximum pre-trial detention: Two months (extendable up to six months with court approval)

Suspect Rights

• Right to counsel: Access to a lawyer at all stages (Article 30)
• Right to remain silent: Article 244-3 requires police to inform suspects
• Recording of interrogations: Electronic recording of police and prosecution interrogations is mandatory for serious crimes

Prosecution Phase

Prosecutorial Discretion

Korea follows the principle of prosecutorial discretion (기소편의주의): prosecutors may decline to indict even where sufficient evidence exists. Non-indictment decisions may be:

• No suspicion: Insufficient evidence
• No crime: Conduct does not constitute an offense
• Lack of prosecution request: For victim-complaint offenses
• Suspended indictment: Conditional non-prosecution

Indictment

If the prosecutor decides to indict, he or she files a written indictment (공소장) specifying the charges and supporting facts. Korea does not have grand jury proceedings.

Trial Phase

Court Composition

• Single judge: Cases punishable by fine or imprisonment up to 15 years
• Three-judge panel: Cases punishable by life imprisonment or death, or serious offenses

Trial Procedure

The 2007 reform introduced adversarial elements:

• Opening statement: Both sides present case overview
• Examination of evidence: Direct and cross-examination (party-conducted, not court-conducted)
• Closing arguments: Both sides present legal arguments
• Judgment: The court renders judgment, including conviction, acquittal, or sentencing

Defendant’s Rights at Trial

• Presumption of innocence (Article 27(4))
• Public trial: Except where closed for national security or public order
• Right to present evidence: Including calling witnesses
• Right to confront witnesses

Evidence Rules

• Hearsay restriction: General prohibition with statutory exceptions (Articles 310-2 through 316)
• Confession rule: Corroborating evidence required (Article 310)
• Exclusionary rule: Illegally obtained evidence inadmissible (established by Supreme Court, 2007Do3061)
• Free evaluation of evidence: Court determines probative value

Appeals

• First appeal (항소): High Court review of district court decisions (fact and law)
• Final appeal (상고): Supreme Court review of legal errors only

Conclusion

South Korean criminal procedure has transformed from an inquisitorial, prosecutor-dominated system to a more adversarial, rights-protective framework. The 2007 reform and 2020 prosecutorial reform represent significant steps toward a balanced, fair criminal justice system, though challenges remain in implementation and enforcement of procedural rights.