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South Korea Criminal Procedure
In the absence of martial law or emergency decrees, both of
which historically had been exercised by the government and
provisions for which remained in the 1987 Constitution, criminal
procedure in other than political cases followed a set format.
Both public prosecutors and the police were authorized to conduct
investigations of criminal acts. Public prosecutors were under
the direction and supervision of the Office of the Supreme
Prosecutor General; the supreme prosecutor general was appointed
by the president. In 1990 there were four branches of the Office
of the High Prosecutor General and fourteen district offices.
Theoretically, police authority to investigate criminal acts was
subordinate to the direction and review of the prosecutors. Also,
the arrest of a suspect required a judicial warrant except in
cases of flagrante delicto or when it was believed that the
suspect would flee or commit the act again. The request for a
warrant could be made only by the prosecutor.
After an arrest, the suspect had to be transferred to the
public prosecutor within ten days and indicted within ten days of
the prosecutor's gaining custody. The judge was permitted to
extend detention another ten days', the suspect could request
court review of the legality of detention.
The public prosecutor initiated legal action. The name of the
accused, the alleged crime, the alleged facts of the case, and
the applicable laws were stated in the indictment. The prosecutor
had significant discretionary power to decide not to bring the
case to court based on his interpretation of the law and
evidence, or in consideration of a suspect's age, character,
motive, or other circumstances, even though a crime had been
committed.
Prosecutors normally indicted only when they accumulated what
they considered overwhelming evidence of a suspect's guilt. The
courts, historically, were predisposed to accept the allegations
of fact in an indictment. This predisposition was reflected in
both the low acquittal rate--less than 0.5 percent--in criminal
cases and in the frequent verbatim repetition of the indictment
as the judgment. The principle of "innocent until proven guilty"
applied in practice much more to the pre-indictment investigation
than to the actual trial.
During the 1980s, there was a dispute within the legal system
over the judiciary's power to check prosecution. The prosecution
and judiciary differed over whether or not the law gave the
judiciary grounds to arraign suspects before issuing warrants.
The judiciary tried repeatedly in the 1980s to institutionalize
this right and in 1989 asserted it in a proceeding. The judiciary
was not able to compel the prosecution to accept this view,
however.
At the prosecutor's discretion, a case could be brought
before the court by summary indictment if the offense were
punishable by fines. In such a case, the judge gave a summary
judgment without holding a public hearing. The accused could
request an ordinary trial.
Once indicted, the accused had the right to be released on
bail. Exceptions could be made if the offense were punishable by
death, life imprisonment, or imprisonment over ten years; if the
defendant were a recidivist; if there were suspicion that the
defendant would destroy evidence; or if there were reasonable
grounds to suspect that the defendant would flee; or if the
residence of the defendant were unknown. In 1989 bail was granted
in a National Security Act case for the first time.
The constitutional right to representation by an attorney was
not interpreted as applying to the investigation and
interrogation phases. In National Security Act cases, access to
counsel was regularly denied during the investigation phase. In
1989 lawyers sought court orders granting access, but neither the
ANSP nor the Prosecutor General's Office felt compelled to comply
when the National Security Act was involved.
There was no jury system. Cases that involved offenses
punishable by the death penalty, life imprisonment, or
imprisonment for not less than one year were tried by three
judges of a district or branch court. The remaining cases were
heard by a single judge. Political and criminal cases were tried
by the same courts; military courts did not try civilians except
under martial law.
At least five days before trial, the defendant was served a
copy of the indictment. The defendant had to be represented by
counsel if the offenses were punishable by death or imprisonment
for more than three years. The court appointed defense counsel if
the defendant was unable to do so because of age, mental
capacity, poverty, or other handicaps that might impair choice or
communication.
Hearings generally were open to the public. If danger to
national security or prejudice to public peace or good morals
were involved, the judge could close the proceedings. Charges
against defendants in the courts were declared publicly. Trial
documents, however, were not part of the public record. In
lengthy and complex indictments, the relationship between
specific alleged actions and violations of specific sections of
the penal code could become unclear. In cases involving a mixture
of political and criminal charges, this situation at times led to
charges of unfair proceedings. A defendant had the right to
remain silent and free from physical restraint in the courtroom.
Judges generally allowed considerable scope for the examination
of witnesses.
Either the defendant or the prosecutor could appeal a
judgment on the basis of law or fact. Appeals could result in
reduced or increased sentences. A Constitution Court was
established in 1988 to relieve the burden on the Supreme Court
(see The Judiciary
, ch. 4). When the constitutionality of a law
was at issue in a trial, the Supreme Court requested a decision
of the Constitution Court. The president, chief justice, and the
National Assembly each named three members of the nine-member
Constitution Court.
The Supreme Court retained the power to make final review of
the constitutionality or legality of administrative decrees,
regulations, or actions when at issue in a trial. Grounds for an
appeal to the Supreme Court were limited by the Code of Criminal
Procedure to violation of the Constitution, law, or regulation
material to the judgment; abolition, alteration, or pardon of
penalty; a grave mistake in factfinding; or extreme impropriety
in sentencing. An interpretation of law in an appeal had binding
effect on the inferior court only when the case was remanded. In
other cases, however, a decision of the Supreme Court only had
persuasive effect.
Judges were trained professionally and were among the best
products of one of the toughest education systems in the world.
The qualifications for a judge were the completion of two years
of courses at the Judicial Research and Training Institute after
passing the national judicial examination, or the possession of
qualifications as a prosecutor or an attorney. Judges were
members of a tiny elite; the institute had only 3,692 graduates
from 1949 to 1988. In 1988 there were only 940 judges, 668
prosecutors, and 1,593 practicing attorneys. There were
additional requirements for higher positions: fifteen years of
legal experience for the chief justice and justices of the
Supreme Court; ten years of experience for the chief judge of an
appellate court, the chief judge of a district court, the chief
judge of a family court, and the senior judge of an appellate
court; and five years of experience for the judge of an appellate
court, the senior judge of a district court, and the senior judge
of a family court. South Korea's president, with the consent of
the National Assembly, appointed both the chief justice and, upon
the recommendation of the chief justice, the other justices of
the Supreme Court. Under the 1987 Constitution and the Court
Organization Law, lower justices were appointed by the chief
justice with the consent of the Conference of Supreme Court
Justices.
Historically, the executive branch exercised great influence
on judicial decisions. However, there were some indications of
increased judicial independence in 1989. In a number of cases,
the Constitution Court found that the government had violated the
constitutional rights of individuals. Moreover, the Supreme Court
invalidated the results of the elections for two National
Assembly seats, citing election law violations by victorious
ruling party candidates.
Penal administration was controlled and supervised by the
Ministry of Justice. There were four detention facilities (for
unconvicted detainees), twenty-seven correctional institutions,
ten juvenile training institutes, and four juvenile
classification homes. Conditions in correctional institutions
were austere and particularly harsh in winter. Discipline was
strict. Prisoners who broke rules or protested conditions
sometimes were physically abused. Under normal circumstances,
however, convicts were not physically punished. Most accusations
of mistreatment involved persons detained or awaiting trial in
detention facilities, rather than those who were already
convicted and serving their sentences in prison. Visitation was
strictly limited to legal counsel and immediate families. Mail
was subject to monitoring and occasional censorship. There was no
significant difference in the treatment of prisoners on the basis
of wealth, social class, race, or sex. The treatment of political
prisoners could be better or worse than that of regular
prisoners. On some occasions, special provisions were allowed for
political prisoners, and as late as 1989 it also was alleged by
human rights activists that political prisoners sometimes were
subjected to sleep deprivation and psychological pressure.
There were a number of probationary devices that permitted
police to supervise suspected or convicted criminals, including
deferral of prosecution and suspension of sentence. These
measures increased judicial flexibility and were often used to
show clemency. Probationary devices also had frequently been used
to ensure that released political offenders behaved in a manner
acceptable to the government. Criminals who showed repentance
regularly were freed in amnesties, often linked to holidays.
Amnesty often was declared to showcase the beneficence of the
state in forgiving criminals.
* * *
Three excellent sources on the South Korean armed forces are
Edward A. Olsen's "The Societal Role of the Republic of Korea
Armed Forces" in The Armed Forces in Contemporary Asian
Societies; Eugene Kim's "The South Korean Military and Its
Political Role" in Political Changes in South Korea and
Young Woo Lee's insightful article "Birth of the Korean Army,
1945-50" in Korea and World Affairs. The Asian Defence
Journal often has comparative analyses of the military
capabilities of the North Korean and South Korean armed forces.
Larry A. Niksch's "The Military Balance on the Korean Peninsula"
in Korea and World Affairs and Richard L. Sneider's The
Political and Social Capabilities of North and South Korea for
the Long-Term Military Competition provide useful information
on the Korean arms race. Dae-Kyu Yoon's Law and Political
Authority in Korea is an excellent and detailed study of the
interaction of law and politics in South Korea. Two books by
South Korean army officers, Colonel Lee Suk Bok's The Impact
of United States Forces in Korea and Brigadier General Taek-
Hyung Rhee's U.S.-ROK Combined Operations provide the
South Korean perspective on United States-South Korean military
relations. English-language sources on national security issues
are published regularly by the Seoul government, South Korean
universities, and two daily newspapers, Korea Herald and
Korea Times. The Ministry of National Defense publishes an
annual White Paper that provides a comprehensive
examination of military organization, defense spending, and
training in the South Korean armed forces. The National Police
Headquarters annually publishes Korean National Police, a
pictorial and textual description of that organization. Manwoo
Lee, Ronald D. McLaurin, and Chung-in Moon's (eds.), Alliance
under Tension: The Evolution of South Korean-U.S. Relations
is another useful source.
The subversive activities of North Korea in South Korea and
abroad and the causes for increased domestic violence in South
Korea in the 1980s are discussed in official reports published by
the United States Department of State and the Committee on
Foreign Affairs of the United States House of Representatives.
The Bombing of Korean Airlines Flight KAL-858, by the
United States House Committee on Foreign Relations, provides a
comprehensive examination of North Korea's past use of and
capabilities for future acts of terrorism targeting South
Koreans. Donald N. Clark's The Kwangju Uprising examines
aspects of the Kwangju incident following Chun Doo Hwan's
December 1979 coup. Selig S. Harrison's The South Korean
Political Crisis and American Policy Options discusses the
goals of radical organizations in South Korea in the mid-1980s.
For information concerning the history of the Korean legal
system, Chun Bong Duck, William Shaw, and Choi Kai-Kwon's
Traditional Korean Legal Attitudes should be consulted.
Articles in the Far Eastern Economic Review and Asian
Survey should also be consulted. (For further information and
complete citations,
see
Bibliography.)
Data as of June 1990
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