When involved in a criminal case or victimized by crime in Korea, understanding the flow of criminal procedures is crucial.
Particularly with the 2021 adjustment of investigative authority between police and prosecutors, criminal procedures have changed significantly, making it essential to understand the meaning of non-prosecution dispositions and non-referral decisions, along with response methods at each stage.
Today, we'll examine the entire criminal procedure process in detail to help practitioners understand this complex-seeming system.
Meaning and Legal Effect of Non-Prosecution Dispositions
A non-prosecution disposition occurs when prosecutors conclude, after investigation, that no crime was established or evidence is insufficient, deciding not to prosecute.
While this terminates the criminal case, it doesn't automatically restore victims' rights.
Types of Non-Prosecution Dispositions
Suspension of Indictment (기소유예) This disposition is issued when the alleged facts are acknowledged but prosecution is deemed unnecessary considering the factors in Article 51 of the Criminal Act. Simply put, while a crime clearly occurred, prosecution is suspended due to circumstances making punishment difficult or the matter being very minor. This is often issued for first-time offenders of minor crimes without prior records.
Non-Suspicion (혐의없음) This is divided into two categories:
- Crime Not Acknowledged: When the alleged facts don't constitute a crime
- Insufficient Evidence: When there's insufficient evidence to acknowledge the alleged facts
Crime Not Established (죄가안됨) Issued when alleged facts meet criminal elements but legal grounds exist that negate criminal establishment.
No Right of Arraignment (공소권없음) Issued when the statute of limitations has expired or complaints have been withdrawn in cases requiring victim complaints.
Dismissal (각하) A disposition prosecutors make without investigation when it's clearly evident from complaints or accusations that non-prosecution grounds exist.
Differences Between Non-Referral and Non-Prosecution : Practical Implications
Non-referral and non-prosecution both indicate case processing results in criminal matters but have important differences in process and authority.
Non-Referral by Police
Non-referral occurs when police, after investigation, determine the case doesn't sufficiently constitute a crime or lacks evidence, deciding not to refer it to prosecutors.
Due to the 2021 police-prosecution investigative authority adjustment, police gained authority to conclude investigations with non-referral decisions when determining no criminal suspicion exists, without referring cases to prosecutors.
This completely differs from the previous system where all cases were referred to prosecutors.
When non-referral decisions are made, cases aren't sent to prosecutors, effectively terminating them, often making it difficult for victims to take additional measures.
However, complainants or victims can appeal police non-referral decisions, in which case the case is referred to prosecutors.
Non-Prosecution by Prosecutors
Non-prosecution occurs when prosecutors, after receiving cases from police, decide not to prosecute due to insufficient evidence, legal issues, or non-establishment of crime.
When non-prosecution dispositions are issued, cases are terminated and no longer processed criminally, though victims can still pursue civil damages.
Police Investigation Stage Procedures and Response Strategies
The police investigation stage involves police investigating cases and collecting evidence after incidents occur.
When reports are filed, police record cases and begin investigations, conducting victim statements, evidence collection, and witness examinations.
After collecting case-related evidence and summoning suspects for investigation when necessary, police determine case direction once sufficient evidence is secured.
Police investigation periods vary by case complexity and crime type but generally take 1 week to 2 months. Complex cases or those with difficult evidence collection may take longer.
After completing investigations, police either refer cases to prosecutors or make non-referral decisions.
Why Punishment Request Documents Cannot Be Submitted at Police Stage
During police investigations, documents like severe punishment requests cannot be submitted because prosecution decisions haven't been made at this investigative stage.
While police conduct crime investigations, prosecution authority rests with prosecutors, so no formal procedures exist at the police stage for victims to request specific sentences or punishments.
Appealing Police Non-Referral Decisions
Complainants or victims can appeal police non-referral decisions without time limitations, meaning appeals can be filed anytime after non-referral decisions.
Upon appeal, cases are automatically referred to prosecutors who can investigate without restrictions.
Prosecution Investigation Stage and Prosecution Decision Process
The prosecution investigation stage involves prosecutors deciding whether to prosecute or conducting additional investigations on cases referred from police.
Prosecutors review referred cases and, when necessary, direct additional investigations or request supplementary investigations from police.
Based on investigation results, prosecutors decide whether to prosecute—prosecuting with sufficient evidence or issuing non-prosecution dispositions when evidence is lacking.
Prosecuted cases have charges filed with courts and trials proceed. When necessary, prosecutors can request arrest warrants to detain suspects.
Prosecution investigation periods typically take 1-3 months, though complex cases or those with multiple suspects may take longer.
Submission of Punishment Opinion Documents
At the prosecution stage, victims can submit severe punishment request documents or punishment opinion papers.
As prosecutors have authority to decide prosecution, victims can express their position that offenders should be punished by submitting opinion documents requesting severe punishment.
According to the Criminal Procedure Act, prosecutors can consider victims' opinions in investigation and prosecution decisions and may accept victims' punishment requests.
Appealing Prosecutors' Non-Prosecution Dispositions
Complainants or accusers dissatisfied with prosecutors' non-prosecution dispositions can appeal to the competent high prosecutors' office. If appeals are rejected, they can petition the competent high court for adjudication.
If petitions are found reasonable, courts directly decide to file charges, proceeding with criminal trials.
Differences Between Detention Trials and Non-Detention Trials
Detention Trials (구공판)
Detention trials refer to trial procedures for detained defendants.
These occur when arrest warrants are issued and defendants face their first trial while detained. Trials proceed during detention periods to prevent defendants' flight or evidence destruction.
Detention trials involve defendant identification, charge confirmation, and evidence submission, followed by trials determining guilt or innocence.
As trials proceed while detained, swift progress is required, and trials must complete within detention period limits.
Non-Detention Trials
Trials proceeding without detention are called non-detention trials, where defendants face trial in free status—either when arrest warrants weren't issued or defendants were released from detention.
In non-detention trials, defendants must periodically appear when summoned for trial, having obligations to attend court.
Bail allows defendants to face trial freely when courts determine no flight risk exists, releasing defendants under certain conditions.
Non-detention trials allow relatively relaxed proceedings as defendants aren't detained, though evidence is submitted and defendants are given defense opportunities.
Civil Litigation Strategies After Non-Prosecution Dispositions
Non-prosecution dispositions don't automatically restore injured parties' rights.
If you suffered fraud-related damages without compensation, you can claim damages through civil litigation besides criminal punishment.
Civil Compensation Claims
You can claim fraud damage compensation through civil litigation and file damage claims.
Civil litigation allows compensation for damages from others' illegal acts. Even with criminal non-prosecution dispositions, civil torts may be established—a separate legal judgment from criminal cases.
Civil litigation can succeed with lower burden of proof than criminal cases, so civil liability often applies even with criminal acquittals.
Requirements for Civil Litigation
When pursuing civil litigation, you must prove damage occurrence, perpetrator's intent or negligence, and causation between damage and harmful acts.
Evidence collected and statements from criminal proceedings can serve as important evidence in civil litigation, so consider this during criminal procedures.
Damage claims can include not just property damage but also compensation for mental suffering. Particularly in fraud or embezzlement cases, substantial mental anguish beyond simple property damage warrants claiming such compensation.
Criminal Procedure Improvements and Future Outlook
Post-Investigation Authority Adjustment Improvements
Several improvements have been introduced to criminal procedures following the police-prosecution investigative authority adjustment.
Police have introduced investigation deliberation officer systems to review the appropriateness of cases scheduled for non-referral decisions, building capacity as primary investigators.
They also operate warrant review officer systems to judge warrant application appropriateness before requesting search/seizure and arrest warrants.
Relief Application System
Case participants including suspects, complainants, accusers, and victims can file relief applications with prosecutors if experiencing legal violations, human rights infringements, or suspected significant investigative authority abuse during police investigations.
Prosecutors receiving relief applications can request police corrective measures or case referral to prosecutors when determining relief necessity.
Statistical Reality
Statistics show prosecutors' re-investigation requests for police non-referral decisions comprise only 3.2%, while cases referred to prosecutors through direct appeals by complainants represent only 5.7% of all non-referral decisions.
A full 91% of non-referral decision cases conclude according to police decisions without prosecutors' re-investigation requests or complainants' appeals.
While this demonstrates police investigations have considerable completeness, it simultaneously means responses at the police investigation stage have become that much more important.
With police investigative authority expected to strengthen further, parties involved in criminal cases need systematic and professional responses from the police investigation stage.
While criminal procedures are complex and specialized, effective responses are possible with accurate understanding of basic flow and rights at each stage.
Particularly with expanded police roles due to investigative authority adjustment, careful and systematic responses are needed from police investigation stages.
For Victims
- Don't miss the right to appeal police non-referral decisions after complaints or accusations
- Even with non-prosecution dispositions, examine civil litigation possibilities for damage recovery
For Suspects
- Actively explain positions from police investigation stages
- Work toward favorable dispositions like acquittal or suspended indictment
Criminal cases are serious matters significantly affecting parties' lives, so professional assistance is preferable to handling alone.
Especially now with major changes to police investigation organizations and systems, professional assistance with extensive practical experience has become even more important for effective immediate responses to changing investigative situations.
Key Takeaways for Foreign Nationals
- 2021 Reform Impact: Police gained authority to close cases without prosecutor referral
- Non-Referral vs. Non-Prosecution: Different authorities (police vs. prosecutors) with different appeal processes
- Investigation Time Limits: Police investigations typically last 10 days, extendable; prosecution review adds 10-20 days
- Rights During Investigation: Right to interpreter, legal counsel, and to appeal decisions
- Civil Remedies Available: Criminal non-prosecution doesn't prevent civil damage claims
- Documentation Timing: Punishment requests only possible at prosecution stage, not during police investigation
- Appeal Rights: No time limit for appealing police non-referral decisions