Justice System

Overview

A legal system has always existed throughout 5,000 years of Korean history. With the adoption of the western legal system in the late 19th century, judicial functions became separate and independent from the executive power. In 1948, the Ministry of Justice and the Supreme Court were established.

In Korea, the constitutional power is divided into three branches based on the principle of separation of powers: the Executive, the Legislative and the Judiciary. The Ministry of Justice is a part of the Executive branch, separate from the Judiciary.

The Judiciary is composed of the Supreme Court, the High Courts, the District Courts and their Branch Courts, and the specialized courts such as Family Courts. The courts are empowered to adjudicate civil, criminal and administrative cases as well as election lawsuits and other judicial cases as stipulated by law.

In addition, the Constitutional Court was established in 1988 in accordance with the current Constitution. The Court is committed to fully protecting the constitutional rights of the people and decides on cases of constitutional magnitude such as impeachment and the dissolution of political parties.

To become a lawyer in Korea, one must pass the National Judicial Examination and complete the two-year training course at the Judicial Research and Training Institute. Upon the completion of the course, he/she may be appointed as a judge or a prosecutor, or practice as a private attorney.

As of December 2009, there are 2,468 judges, 1,699 prosecutors and 11,016 registered private attorneys in Korea.

  • Judicial Examination
    • Judicial Research and Training Institute : 2 Years
      • Judge
      • Prosecutor
      • Attorney

Criminal Procedure

1. Investigation and Prosecution

Investigation and Prosecution A prosecutor has the authority to investigate criminal cases and is entrusted with the exclusive authority, albeit with a minor exception, to initiate criminal procedures by prosecuting the offenders. The judicial police officer can investigate cases under the supervision of the prosecutor. There are two different judicial police officers: general judicial police officers, who deal with criminal cases in general; special judicial police officers, who handle the specific types of cases set out in the relevant laws.

When a crime is committed, the judicial police officer initiates an investigation. Then, the case is transferred to the prosecutors' office, where a prosecutor either concludes the case or continues with the investigation by questioning the suspect and related witnesses or by conducting further examination of case documents and evidence.

In the case of complex offenses and white-collar crimes, such as corruption of public officers, economic offenses, narcotics offenses, environmental offenses, organized crimes, tax evasions, and police misconducts, the prosecutor normally initiates the investigation ex officio or without prior investigation by the judicial police officer.

  1. Supreme Court
  2. reappeal
    • High Court
    • District Court
      • Appellate Divion(Thress Judges)
  3. appeal
    • District Court
      • Three Judges - Creimes punishable by 1 year imprisonment or more
      • Single Judge - Other minor crimes
  4. non - prosecution
  5. Prosecutor
  6. Police

A suspect can be arrested only with a warrant issued by a judge, except in the cases where a flagrant offender is apprehended or in the cases of emergency, set out in the Criminal Procedure Act. If the prosecutor arrests a suspect without a warrant, the prosecutor must file a request for a warrant within 48 hours, or the prosecutor must release the suspect immediately. Only the prosecutor has the authority to request the issuance of a warrant to the court. Thus, the judicial police officer must submit a request for the issuance of a warrant to the prosecutor, not directly to the court.

At the conclusion of the investigation, the prosecutor in charge decides whether the suspect should be prosecuted. When the prosecutor finds that the alleged facts do not constitute a crime or that there is insufficient evidence to prove the crime, he/she can exercise discretionary power not to bring the case to the court. Even if incriminating evidence against the suspect is sufficient for prosecution, the prosecutor is authorized to suspend prosecution in consideration of the suspect's age, character, motive, and other circumstances.

2. Trial

Cases punishable by capital punishment, life imprisonment or sentence of one-year imprisonment or more are tried by the three-judge court. Other cases are tried by the single-judge court.

After the case is referred to the court, the prosecutor, as the representative of the government, introduces evidence to the court, questions the defendant, examines the witness, and performs other duties in continuous efforts to serve justice.

In order to fully guarantee the rights of a defendant to have the assistance of legal counsel, it is mandated that the court appoints a defence counsel when the defendant is a minor, 70 years or older, suspected of mental illness, or cannot afford a counsel.

In the closing statement, the prosecutor suggests a suitable type of penalty, and the length or amount of punishment. The court then renders the final judgment on whether the defendant is guilty of a crime; and, if so, how severe the sentence should be.

3. Appeal and Execution

The prosecutor and/or the defendant who contest the judgment rendered by the trial court have the right to appeal to an appellate court. The High Court hears the appeals raised against the judgments rendered by the three-judge courts. The appeals against the judgments of the single-judge courts are tried by the appellate division of the District Court. The prosecutor and/or the defendant have the right to re-appeal to the Supreme Court when dissatisfied with the judgment of the lower court.

When a sentence becomes final, the prosecutor directs and supervises its execution.

4. Summary Indictment

A prosecutor may bring a case before the court by a summary indictment when the offense is punishable by a fine. In such a case, the judge issues a summary order without holding a hearing unless this may be inappropriate. In addition, the dissatisfied defendant can request a formal trial within seven days from the receipt of the summary order.

5. Speedy Trial Procedure

Speedy-trial procedure is applicable in certain cases for the brevity and expeditiousness of the proceedings. The procedure is an option for minor offenses punishable by no more than 200,000 KRW(around 215USD). Such cases are referred to the court by the chief of a police station without engaging the prosecutor.

The speedy trial is presided over by a judge, open to the public at a place other than the police station. The judge, when deciding that the speedy procedure is not applicable to the case referred, dismisses the application, whereby the chief of the police station immediately transfers the case to the prosecutor for formal criminal proceedings. Any defendant dissatisfied with the outcome of the speedy trial can request a formal trial within seven days from the receipt of the judgment.

When a sentence of the speedy trial becomes final, it is executed by the chief of the police station and then reported to the prosecutor.

6. Lay Participation in Criminal Trials

As of January 1, 2008, a new system which allows lay citizens to participate in criminal trials as jurors has been introduced. The system is intended to raise public confidence in the nation's judicial system by enhancing its democratic legitimacy and transparency.

Upon the request of the defendant, the jury consisting of 5 to 9 citizens attends a felony criminal trial along with professional judges and provides advisory opinions.

Jurors are required to independently consider whether the defendant is guilty or not and reach a unanimous verdict; if fain, they depend on majority vote. The jury also presents individual opinions on sentencing after the discussion with the judge. The jury verdict and its view on sentencing, however, do not bind the judge's decision.

The newly-established system is a combination of the common law jury system, under which a verdict is rendered solely by jurors, and the continental law jury system(Schoffengericht), which involves citizens as a member of the bench to do a fact-finding and decide a decree of imprisonment, a fine and/or other punishments against the convicted defendant.