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Selected Statutes of the Republic of Korea |
제12편 형사법 형사소송법
Act No. 341, Sep. 23, 1954
Amended by Act No. 705, Sep. 1, 1961
Act No. 1500, Dec. 13, 1963
Act No. 2450, Jan. 25, 1973
Act No. 2653, Dec. 20, 1973
Act No. 3282, Dec. 18, 1980
Act No. 3955, Nov. 28, 1987
Act No. 4796, Dec. 22, 1994
Act No. 5054, Dec. 29, 1995
Act No. 5435, Dec. 13, 1997
Act No. 5454, Dec. 13, 1997
Act No. 6627, Jan. 26, 2002
Act No. 7078, Jan. 20, 2004
Act No. 7225, Oct. 16, 2004
Act No. 7427, Mar. 31, 2005
Act No. 7965, Jul. 19, 2006
Act No. 8435, May 17, 2007
Act No. 8496, Jun. 1, 2007
Act No. 8730, Dec. 21, 2007
PART Ⅰ GENERAL PROVISIONS
CHAPTER Ⅰ JURISDICTION OF COURTS
Article 1 (Investigation of Jurisdiction Ex Officio)
The court shall ex officio investigate jurisdiction.
Article 2 (Improper Jurisdiction and Effect of Proceedings)
An action of litigation shall not lose effect by reason of improper juris- diction.
Article 3 (Execution of Duties Outside Jurisdiction)
(1) In cases where it is necessary for the purpose of fact-finding or in case of urgency, the court may, outside its jurisdiction,
carry out its duties or take such measures as may be necessary for the fact-finding.
(2) The provisions of the preceding paragraph shall apply mutatismu-
tandis to a commissioned judge.
Article 4 (Territorial Jurisdiction)
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(1) The territorial jurisdiction of the court shall be determined by the
place of offense, the place of domicile, residence of the defendant, or the place where the defendant is presently located.
(2) In respect to an offense committed on board a Korean vessel sailing outside Korea, in addition to the places mentioned in
the preceding
paragraph, the territorial jurisdiction of the court shall be determined
by the place where the vessel is registered or the place where such vessel has lain at anchor subsequent to the commission of
the offense.
(3) The provisions of the preceding paragraph shall apply mutatismu-
tandisto an offense committed in a Korean aircraft while outside Korean
territory.
Article 5 (Consolidation of Territorial Jurisdiction)
When several cases falling under the territorial jurisdiction of different courts are co-related with each other, a court which
has jurisdiction
over one of them may exercise jurisdiction over the other cases.
Article 6 (Consolidated Proceedings for Territorial Jurisdiction)
When several co-related cases falling under the territorial jurisdiction of different courts are pending severally in different
courts, the next
immediately higher court being common to all such courts may, upon re- quest of a public prosecutor or the defendant, make a
ruling that the
cases shall be consolidated in one court.
Article 7 (Separate Proceedings for Territorial Jurisdiction)
Where several co-related cases falling under the territorial jurisdiction of different courts are pending before one court, and
there is any case
unnecessary to be examined consolidatedly, the said court may, by means of a ruling, separate and transfer it to other court having
jurisdiction.
Article 8 (Transfer of Case Ex Officio)
(1) If a defendant is not found in the district under the territorial ju- risdiction of the court, and if there are any special circumstances,
the court may, by means of a ruling, transfer the case to an equivalent ranking court which has jurisdiction over the place where
the defendant is presently located.
(2) In cases where a case under the jurisdiction of a single judge is, due to changes in indictment, changed into that of the collegiate
body of a court, the court shall transfer the case to the court having the jurisdic-
tion over such cases by means of a ruling. <Newly Inserted by Act No. 5054,
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제12편 형사법 형사소송법
Dec. 29, 1995>
Article 9 (Consolidation of Jurisdiction of Subject Matter)
When two or more cases the jurisdiction of the subject matter of which
is different, are co-related with each other, the collegiate body of the court shall exercise jurisdiction over all of them
by consolidation: Pro- vided, That the court may, by means of a ruling, transfer the case to a
single judge of a court having jurisdiction over the cases.
Article 10 (Combined Proceedings for Jurisdiction of Subject Matter) When several co-related cases the jurisdiction of the subject matter of which is different are severally pending before the collegiate body and a single judge of a court, the collegiate body of a court may, notwith- standing the jurisdiction of the subject matter, examine consolidatedly the case belonging to the jurisdiction of the single judge by means of a ruling.
Article 11 (Definition of Co-Related Cases)
Related cases shall be as follows:
1. In cases where two or more offenses have been committed by one
person;
2. In cases where two or more persons have jointly committed the same
offense;
3. In cases where two or more persons have committed individually of-
fenses at the same time and at the same place; and
4. The offense of harboring an offender, suppression of evidence, perjury,
false expert testimony or interpretation, or the offense relating to
the stolen goods, and the offense of the principal offender thereof.
Article 12 (LisPendensof One and Same Case before Two or More Courts) When one and the same case is pending before two or more courts the jurisdiction of the subject matter of which is different, it shall be ex- amined by the collegiate body of the court.
Article 13 (Concurrence of Jurisdiction)
When one and the same case is pending before two or more courts the
jurisdiction of the subject matter of which is identical, the court in which
the public prosecution therefor has first been instituted shall examine
the case: Provided, That the next immediate higher court being common
to all such courts may, upon application of a public prosecutor or the
defendant, have the court in which the prosecution therefor has been in-
stituted later examine such case by means of a ruling.
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Article 14 (Request for Designation of Proper Court)
In the following cases, a public prosecutor shall apply to the next im- mediate higher court being common to the first instance court
concerned for the designation of proper court:
1. When the jurisdiction of the court is not clear; and
2. When there is no other proper court in respect to such case as the decision declaring the improper jurisdiction therefor has
become final
and conclusive.
Article 15 (Application for Transfer of Jurisdiction)
In the following cases, a public prosecutor shall apply to the next imme- diate higher court for the transfer of the case to other
court. The defendant may also do so:
1. When for a legal reason, or owing to special circumstances the court having jurisdiction is unable to exercise its judicial
power; and
2. When owing to the nature of the offense, the popular sentiment of
the district, the circumstances of the proceedings or any other cir- cumstances, there is any apprehension that an impartial trial
cannot be maintained.
Article 16 (Forms of Designation of Proper Court and Application for
Transfer)
(1) In case of an application for designation of proper court or transfer to other court, a written application stating the cause
shall be submitted to the next immediate higher court.
(2) When an application for designation of proper court or transfer to other court is made after the institution of the prosecution,
notice there-
of shall be immediately given to the court in which the prosecution has
been instituted.
Article 16-2 (Transfer to Military Court)
When a military court comes to have jurisdiction over a case in which public prosecution has been instituted or it is found that
the military
court has jurisdiction over such case, the court concerned shall, by means of a ruling, transfer such case to the military court having
the jurisdic- tion of the same instance. In this case, the proceedings already done be-
fore the transfer shall not lose the effect thereof by reason of the trans- fer. <Amended by Act No. 3955, Nov. 28, 1987>
[This Article Newly Inserted by Act No. 2450, Jan. 25, 1973]
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CHAPTER Ⅱ EXCLUSION, CHALLENGE
AND REFRAINING OF COURT OFFICIALS
Article 17 (Reason for Exclusion)
In the following cases, a judge is excluded from the exercise of his du- ties: <Amended by Act No. 7427, Mar. 31, 2005>
1. In cases where he himself is a victim;
2. In cases where he is a relative of a defendant or a victim or had a kinship with such person;
3. In cases where he is the legal representative, supervisor of guardi- anship of the defendant or the victim;
4. In cases where he has become a witness or an expert witness in re- gard to the case, or has become an agent of the victim;
5. In cases where he has acted as the representative, counsel or assis- tant of the defendant with respect to the case;
6. In cases where he has exercised the duties of a public prosecutor or a judicial police officer pertaining to the case; and
7. In cases where he has participated in the decision by the court be- low or investigation or trial which constituted the basis thereof
in the case.
Article 18 (Reason for Challenge and Person entitled to Apply for Chal- lenge)
(1) In the following cases, a public prosecutor or the defendant may
challenge a judge:
1. If a judge falls under any of the reasons referred to in subparagraphs of the preceding Article; and
2. If there is any apprehension that a judge may render an unfair judg- ment.
(2) A counsel may file an application for challenge against a judge only when it does not go against the express will of the
defendant.
Article 19 (Jurisdiction over Motion for Challenge)
(1) The challenge against a judge who is a member of a collegiate court shall be applied to the court to which the judge belongs, and the chal- lenge against a commissioned judge, requisitioned judge or single judge shall be filed against the judge concerned.
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(2) A cause of challenge shall be made by preparing presumptive proof
in writing within three days from the date on which the application has
been filed.
Article 20 (Dismissal and Management of Application for Challenge) (1) An application for challenge which evidently aims at delay of the proceedings or contravenes the provisions of Article 19, shall be dis- missed by means of a ruling by the court or judge which has received such application. <Amended by Act No. 5054, Dec. 29, 1995>
(2) The judge who has been challenged shall submit a written opinion on the application for challenge without delay, except in the
case of the preceding paragraph.
(3) In case of the preceding paragraph, when the challenged judge con- siders that the challenge is reasonable, it shall be deemed
that a ruling thereof is rendered.
Article 21 (Decision on Application for Challenge)
(1) The decision on an application for challenge shall be determined by
a ruling of the collegiate body of the court to which the challenged judge
belongs.
(2) The judge who has been challenged shall not participate in the de-
cision mentioned in the preceding paragraph.
(3) In cases where the court to which the challenged judge belongs does
not constitute a collegiate body, the next immediate higher court shall
decide it.
Article 22 (Application for Challenge and Suspension of Proceedings) Where an application for challenge has been filed, the proceedings there- for shall be suspended except in a case falling under Article
20 (1): Pro- vided, That this shall not apply in case of urgency.
Article 23 (Dismissal of Application for Challenge and Immediate Ap- peal)
(1) A ruling by which an application for challenge is dismissed may be
appealed against immediately.
(2) The immediate appeal to the dismissal ruling under Article 20 (1)
may not suspend the execution of trial. <NewlyInsertedbyActNo.5054,Dec.
29, 1995>
Article 24 (Cause of Refraining, etc.)
(1) In cases where a judge considers that there is any cause which falls
under the provisions of Article 18, he shall refrain from passing on the
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제12편 형사법 형사소송법
matter.
(2) An application for refraining shall be made in writing with the court
to which the judge belongs.
(3) The provisions of Article 21 shall apply mutatismutandisto the ap-
plication for refraining.
Article 25 (Exclusion, Challenge, and Refraining of Court Officials)
(1) With the exception of the provision of subparagraph 7 of Article 17, the provisions of this Chapter shall apply mutatis mutandis to court administrative officers and clerks in Grades Ⅳ through Ⅶ (hereinafter
referred to as court officials ), and interpreters. <AmendedbyActNo.8496,
Jun. 1, 2007>
(2) The ruling on challenges against court officials and interpreters under the preceding paragraph shall be rendered by the court to which they belong: Provided, That the ruling under Article 20 (1) shall be ren- dered by a judge of a court to which such challenged person belongs.
<Amended by Act No. 8496, Jun. 1, 2007>
CHAPTER Ⅲ REPRESENTATION AND ASSISTANCE FOR ACTS OF LITIGATION
Article 26 (Person without Mental Capacity and Representation for
Acts of Litigations)
In a case involving a criminal offense to which the provisions of Arti- cles 9 through 11 of the Criminal Act do not apply and the defendant or the suspect is devoid of mental capacity, he shall be represented by his legal representative in regard of acts of litigation. <Amended by Act
No. 8496, Jun. 1, 2007>
Article 27 (Juristic Person and Representation for Acts of Litigation) (1) When the defendant or the suspect is a juristic person, it shall be represented by its representative in regard of acts of litigation.
(2) Even when a corporation is represented by two or more persons jointly, it shall be represented by each of them severally in respect of acts of litigation.
Article 28 (Ad Hoc Representative for Acts of Litigation)
(1) When there is no person to act for, or to represent the defendant in accordance with the provisions of the preceding two Articles, an ad
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hoc representative shall be appointed by the court upon request of a
public prosecutor or exofficio, and in cases where there is no person to
act for, or to represent the suspect, an ad hoc representative shall be
appointed by the court upon request of a public prosecutor or any inter-
ested person.
(2) The adhoc representative shall perform his functions until there is
another person to pursue the acts of litigation as representative for or
on behalf of the defendant or the suspect.
Article 29 (Assistant)
(1) The legal representative, the spouse, a lineal relative, or a sibling of a defendant or a suspect may act as his assistant.
<Amended by Act No. 7427, Mar. 31, 2005>
(2) A person who intends to act as an assistant shall file a report on his intention with the competent court at each level.
<AmendedbyActNo.
8496, Jun. 1, 2007>
(3) An assistant may independently perform acts of litigation which do not go against the express will of the defendant or the suspect: Provided, That the forging shall not applied to the case where there are other provisions in Acts.
CHAPTER Ⅳ DEFENSE
Article 30 (Persons Entitled to Appoint Defense Counsel)
(1) The defendant or the suspect may appoint a defense counsel.
(2) The legal representative, the spouse, a lineal relative, or a sibling of a defendant or a suspect may independently appoint a
defense coun- sel. <Amended by Act No. 7427, Mar. 31, 2005>
Article 31 (Qualifications for Defense Counsel and Special Defense
Counsel)
A counsel shall be appointed from among attorneys-at-law: Provided,That
in special circumstances, any court, other than the Supreme Court, may
permit the appointment as a counsel, who is not an attorney-at-law.
Article 32 (Effects of Appointment of Defense Counsel)
(1) An appointment of a defense counsel shall be submitted in each instance of court in writing under the name and seal of the
defense counsel.
(2) An appointment of a defense counsel effected prior to the institution
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제12편 형사법 형사소송법
of public action shall remain in force in the first instance.
Article 32-2 (Representing Defense Counsel)
(1) In cases where there are two or more defense counsel, the presiding judge may designate representing defense counsel upon the
application of the defendant, the suspect or the counsel, and revoke or change such
designation.
(2) Where no application under paragraph (1) is filed, the presiding judge may designate representing defense counsel exofficio and revoke
or change such designation.
(3) Representing defense counsel shall not exceed three persons.
(4) Notice or service of documents to a representing defense counsel shall be binding upon all the counsel.
(5) The provisions of paragraphs (1) through (4) shall apply mutatis
mutandis to the case where there are two or more defense counsel for
the suspect and a public prosecutor designates a representing defense
counsel.
[This Article Newly Inserted by Act No. 5054, Dec. 29, 1995]
Article 33 (Defense Counsel Assigned by Court)
(1) In any case falling under any of the following subparagraphs, if no defense counsel is available, the court shall appoint a defense counsel
ex officio:
1. When the defendant is placed under arrest;
2. When the defendant is a minor;
3. When the defendant is seventy years of age or over;
4. When the defendant is deaf and dumb;
5. When the defendant is suspected of having a mental and physical disorder; and
6. When the defendant is indicted for a case corresponding to death pen-
alty, life imprisonment, or imprisonment with or without labor for a short term of 3 three years or more.
(2) Where the defendant is unable to appoint a defense counsel because
of poverty or any other reason, if the defendant requests, the court shall appoint a defense counsel.
(3) When the court deems it necessary to protect the rights considering
the age, intelligence and level, etc. of education of the defendant, it shall appoint a defense counsel within the scope that does
not go against the
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explicit intention of the defendant.
[This Article Wholly Amended by Act No. 7965, Jul. 19, 2006]
Article 34 (Interview, Communication and Medical Examination and
Treatment with Defendant or Suspect)
The defense counsel or a person who desires to be a defense counsel may have an interview with the defendant or the suspect who is
placed under
physical restraint, deliver or receive any documents or things and have
any doctor examine and treat the defendant or the suspect.
Article 35 (Inspection or Copying of Documents or Evidential Mate- rials)
(1) Every defendant and his defence counsel shall have a right to in-
spect or make a copy of any related document or evidential material for his case pending in a court.
(2) The legal representative of a defendant, the adhoc representative
under Article 28, the assistant under Article 29, or the spouse, a lineal relative, or a sibling of a defendant, who files a letter
of attorney and
a document certifying his status, shall also have the right under para- graph (1).
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 36 (Independent Act of Procedure by Defense Counsel)
Any defense counsel may undertake acts of litigation independently in his name: Provided, That the forging shall not applied to the case where there are other provisions in Acts.
CHAPTER Ⅴ DECISION
Article 37 (Judgment, Ruling and Order)
(1) A judgment shall be rendered on the basis of oral proceedings except as otherwise provided in Acts.
(2) A ruling or an order shall not necessarily be based upon oral pro-
ceedings.
(3) In making a ruling or order, the court may, whenever necessary, make an examination of facts.
(4) The examination mentioned in the preceding paragraph may be as- signed to a member of a collegiate court concerned, or a
judge of an-
other district court may be requisitioned.
Article 38 (Form of Written Decisions)
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제12편 형사법 형사소송법
In regard to the decision, the document of decision shall be prepared by a judge: Provided, That in cases where any ruling or order is notified,
it may be made by entering it in a protocol alone instead of preparing a written judgment.
Article 39 (Reasons for Decision)
A decision shall state the reasons on which it is based: Provided, That
this shall not apply in cases where a ruling or order which is subject to
no appeal.
Article 40 (Necessary Entry in Written Decision)
(1) The name, age, occupation and address of the person upon whom
the decision is made shall be entered in the written decision except as
otherwise provided in Acts.
(2) In cases where the person upon whom the decision is made is a
corporation, the name and location of office shall be stated.
(3) The official position and name of the public prosecutor and the name
of the defense counsel who have participated in the trial shall be stated
in the written judgment. <Amended by Act No. 705, Sep. 1, 1961>
Article 41 (Signature, etc. in Written Decision)
(1) The written decision shall be signed and sealed by the judges who
have participated in the decision.
(2) In cases where the presiding judge is unable to sign and seal the de-
cision, another judge shall sign and seal the decision together with a
statement as to the reason. The presiding judge shall sign and seal a de-
cision on behalf of an associate judge who is unable to sign and seal,
and shall state the reason for so signing.
(3) The written decision, excluding a written judgment or other written
decisions determined by the Supreme Court Regulations, may be signed
and sealed instead of the signature and seal as prescribed in para-
graphs (1) and (2). <Newly Inserted by Act No. 5054, Dec. 29, 1995>
Article 42 (Method of Pronouncement or Notification of Decision)
The pronouncement or notification of a decision in a trial court shall be
made by the document of decision, and in other cases it shall be made
by means of delivery of a copy of the written of decision or by any other
proper method, unless otherwise provided in Acts.
Article 43 (Idem)
The pronouncement or notification of a decision shall be made by the presiding judge. In pronouncing a judgment, he shall read the text and
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explain the gist of the reasons.
Article 44 (Case Requiring Direction of Public Prosecutor for its Ex- ecution)
In regard to a decision which requires the direction of the public prose-
cutor for its execution, the copy of or extracts from the written decision
or the protocol in which the decision is entered shall be forwarded to the
public prosecutor within ten days from the date of pronouncement or notification of a decision: Provided, That the same shall not apply to the
case where there are other provisions in Acts. <AmendedbyActNo.705,Sep.
1, 1961>
Article 45 (Request for Copy or Extracts of Document of Decision)
The defendant or any other person concerned in the case may, at his
own cost, request the delivery of the transcript or the abridged copy of
the written decision or of the protocol in which the decision is entered.
Article 46 (Formation of Copy or Extracts of Written of Decision)
The copy of or extracts from the written of decision or the protocol in
which the decision is entered shall be made on the basis of the origi- nal: Provided, That in unavoidable circumstances, it may be made ac-
cording to a copy thereof.
CHAPTER Ⅵ DOCUMENTS
Article 47 (Non-Disclosure of Documents Relating to Proceedings)
No documents relating to proceedings shall be made public prior to the
opening of public trial except for public interest requirements or other
proper reasons.
Article 48 (Method of Formation of Protocol)
(1) In cases where the defendant, suspect, witness, expert witness, in-
terpreter or translator is examined, the court official who has partici-
pated therein shall prepare the protocol. <Amended by Act No. 8496, Jun. 1,
2007>
(2) The protocol shall contain the following subparagraphs:
1. The statement of the defendant, suspect, witness, expert witness,
interpreter or translator; and
2. In cases where the witness, expert witness, interpreter or translator
has not been sworn, the reason therefor.
(3) The protocol shall be read aloud to the person who has made a
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제12편 형사법 형사소송법
statement or inspected by him, and the veracity of the contents of the
statement shall be confirmed by him.
(4) If a person who has made a statement requests any change, dele-
tion, or alteration, such statement shall be entered in the protocol.
(5) In cases where the public prosecutor, the defendant, suspect or de-
fense counsel who has participated in a trial, raises an objection to the
accuracy of protocol, the gist of such statement shall be entered in the
protocol.
(6) In case of the preceding paragraph, the presiding judge or the judge
who has participated in the trial may have an opinion as to the state-
ment to be entered.
(7) The party who has testified shall sign and seal the protocol after a
seal stamped across a leaf and the contiguous leaf. When a party who
has testified refuses to sign and seal the protocol, the reason shall be
entered therein.
Article 49 (Protocol of Inspection of Evidence, etc.)
(1) In respect to inspection of evidence, seizure or search, a protocol
shall be prepared.
(2) A protocol of inspection of evidence may be annexed to a drawing
or photograph in order to clarify the existing state of the object in-
spected.
(3) The protocol concerning a seizure shall contain a statement as to
the kinds, characteristics in appearance and quantity of goods seized.
Article 50 (Necessary Entries in Various Protocols)
The protocols under the preceding two Articles shall contain the date,
time and place of investigation or disposition and shall bear the names
printed and the seals affixed thereon or the signatures written by the
person who has executed the investigation or disposition and the court official who has participated therein: Provided, That in cases where a
court has made the investigation or disposition on any hearing other than a trial, the relevant protocol shall bear the names printed
and the seals affixed thereon or the signatures thereon by the presiding judge or judge and the court official who has participated
therein. <Amended by Act No.
8496, Jun. 1, 2007>
Article 51 (Contents of Protocol of Public Trial)
(1) A protocol of public trial shall be prepared by a court official who
has participated in the legal proceedings on the date of public trial.
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<Amended by Act No. 8496, Jun. 1, 2007>
(2) The protocol of public trial shall contain all the procedure of the trial including the following matters: <Amendedby ActNo. 8496,Jun. 1,2007>
1. Date and time of public trial and the name of the court;
2. Positions and names of judges, public prosecutor, court officials;
3. Names of the defendant, legal representative, representative, defense counsel, assistant and interpreter;
4. Appearance or non-appearance of the defendant;
5. Whether the trial was open to the public or not and the reason why it was held in closed session if it was not open to the
public;
6. Reading of a statement of facts constituting the offense charged or
the written indictment changed;
7. The fact that the defendant was given an opportunity of making a statement which is necessary to protect his rights, and
the facts which
he has stated;
8. Matters listed in Article 48 (2);
9. Documentary and real evidence examined, and the method of exam- ination, when an investigation of evidence is made;
10. Inspection or seizure of evidence which was done in public trial court;
11. The gist of oral proceedings;
12. Matters ordered to be entered by the presiding judge or matters per- mitted to be entered by the presiding judge at the request
of a person
involved in the litigation;
13. The fact that the final opportunity of making a statement was given to the defendant or his defense counsel, and the facts which
he has
stated; and
14. The fact that judgment or decision was pronounced or declared.
Article 52 (Exception in Preparation of Protocol of Public Trial)
The provisions of Article 48 (3) through (7) shall not apply to the pro- tocol of public trial and the record of the examination
of a witness on
a date other than the date of public trial: Provided, That a statement
made by a person shall be read to him upon his request and if any
change, deletion or alteration thereof is demanded, it shall be recorded therein. <Amended by Act No. 5054, Dec. 29, 1995>
Article 53 (Signature on Protocol of Public Trial)
(1) The protocol of public trial shall bear the names printed and the
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seals affixed thereon or the signatures written by the presiding judge
and the court official who has participated in it. <AmendedbyActNo.8496, Jun. 1, 2007>
(2) In cases where the presiding judge is unable to print his name and affix his seal or write his signature on the protocol, another
judge shall
print his name and affix his seal or write his signature thereon with an
additional note explaining the reason therefor, but if there is no judge who is able to print his name and affix his seal or write
his signature
on the protocol, then the court official who has participated in the trial
shall print his name and affix his seal or write his signature thereon with an additional note explaining the reason therefor.
<Amended by Act
No. 8496, Jun. 1, 2007>
(3) In cases where the court official is unable to print his name and affix his seal or write his signature on the protocol, the presiding judge or another judge shall print his name and affix his seal or write his sig- nature on the protocol with an additional note explaining the reason therefor. <Amended by Act No. 8496, Jun. 1, 2007>
Article 54 (Preparation of Protocol of Public Trial)
(1) The protocol of public trial shall be prepared promptly after the date of public trial. <Amended by Act No. 8496, Jun. 1, 2007>
(2) The outlines of major facts dealt with on a preceding trial, as re-
corded in the protocol, shall be informed on the succeeding trial: Pro-
vided, That such outlines may be informed without the protocol, if the
protocol for the preceding trial has not been prepared until the date of
public trial of next round. <Amended by Act No. 8496, Jun. 1, 2007>
(3) The public prosecutor, the defendant, or his defense counsel may make a motion to alter a description in the protocol
of public trial or
raise an objection. <Amended by Act No. 8496, Jun. 1, 2007>
(4) If there is any motion or objection under paragraph (3), a record describing the purport of such motion or objection
and the presiding
judge s opinion thereon shall be prepared and attached to the protocol of public trial for the case. <Newly Inserted by Act No. 8496, Jun. 1, 2007>
Article 55 (Defendant s Right to Inspect Protocol of Public Trial)
(1) The defendant shall have a right to demand to allow him to inspect and make copies of the protocol of public trial. <Amended by Act No. 5054,
Dec. 29, 1995>
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(2) In cases where the defendant is unable to read the protocol of pub-
lic trial, he may demand the protocol of public trial to be read to him.
<Amended by Act No. 5054, Dec. 29, 1995>
(3) If there has been no acceptance as to the demand of the preceding two paragraphs, the protocol of public trial may not be used as an evi- dence of guilty.
Article 56 (Probative Value of Protocol of Public Trial)
Proceedings at hearings of a public trial which are written in the pro-
tocol can be proved only by such protocol.
Article 56-2 (Stenography and Audio or Video Recording in Trial Court) (1) Unless there is any extraordinary reason otherwise, every court shall, upon a motion from a public prosecutor, a defendant or
a defense coun- sel, assign a stenographer to take stenographic notes of a hearing in the court, in whole or in part, or make audio
or video records (including those with sound recorded; hereinafter the same shall apply) of a hearing by using an audio or video
recording system, and may also order exofficio to take such notes or make such recording, if deemed necessary.
(2) Each court shall keep stenographic notes or audio or video records separate from the protocol of the trial.
(3) Any public prosecutor, defendant, or his defense counsel may request the court to furnish him with copies of the stenographic
notes, audio or video records under paragraph (2), by bearing the expense for such copying.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 57 (Documents of Public Officials)
(1) Each document prepared by a public official shall contain the date
of preparation, the name of the office to which he belongs, and shall
bear the name of the public official printed by him with his seal affixed
thereon or a signature signed by him, except as provided otherwise by
any other Act. <Amended by Act No. 8496, Jun. 1, 2007>
(2) A document shall bear a seal stamped across a leaf and the contiguous
leaf, or measures equivalent thereto shall be taken. <Amended by Act No.
5054, Dec. 29, 1995>
(3) Deleted. <by Act No. 8496, Jun. 1, 2007>
Article 58 (Documents of Public Officials)
(1) When a public official prepares a document, he may not modify any
letter of it.
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(2) When any insertion, elimination or entry in the original is made, a
seal shall be affixed thereto specifying the change. The deleted words shall be left clear enough to be readable.
Article 59 (Documents made by Person Other than Public Official) When a person other than a public official prepares a document, he shall insert the date, and sign and affix his seal thereto. In cases where he has no seal, he shall use his finger prints.
Article 59-2 (Inspection and Copying of Finalized Litigation Records) (1) Any person may file an application for inspection or copying of a lit- igation record for a case for which all the proceedings have been finalized with the competent public prosecutor s office for the purpose of reme- dies for his rights, academic researches, or public interest.
(2) A public prosecutor may place a restriction on inspection or copying of a litigation record, completely or partially, if the case
involved falls under any of the following subparagraphs: Provided, That the forego- ing shall not apply if it is deemed that there is a justifiable ground for a party to the litigation or an interest
third party to inspect or copy the record:
1. If the trial was not open to the public;
2. If the disclosure of the litigation record is likely to seriously under- mine the national security, good public morals, maintenance
of pub- lic order, or public welfare;
3. If the disclosure of the litigation record is likely to seriously defame
a party involved in the case, harm such party s privacy or security of life or body of such party, or impair the peace in such party
s life;
4. If the disclosure of the litigation record is likely to facilitate the de-
struction of evidence or escape of a person who is an accomplice or give a significant influence on the trial for a related
case;
5. If the disclosure of the litigation record is likely to cause a serious
obstacle to the improvement or rehabilitation of a defendant in- volved;
6. If the disclosure of the litigation record is likely to seriously infringe
on the trade secret (referring to the trade secret as defined in sub- paragraph 2 of Article 2 of the Unfair Competition Prevention
and
Trade Secret Protection Act) of a party involved in the case; and
7. If a party to the case does not consent to the disclosure of the liti-
- 17 -
gation record.
(3) A public prosecutor shall, when he places a restriction on inspec- tion or copying of a litigation record pursuant paragraph
(2), notify the applicant of the restriction, clearly stating the reasons therefor.
(4) A public prosecutor may, if deemed necessary for preservation of a
litigation record, furnish a person with a certified copy of the litigation record for inspection or copying: Provided, the foregoing shall not apply
in cases where it is required to inspect or copy the original record.
(5) A person who inspected or made a copy of a litigation record shall not commit any act of undermining public order or good public
morals,
interfering with the improvement or rehabilitation of the defendant in-
volved, defaming a party involved in the case, or impairing the peace of such party s life by using the information acquired from
such inspection
or copying.
(6) A person who filed an application for inspection or copying of a liti- gation record under paragraph (1) may, if he is dissatisfied
with a dispo-
sition made by the public prosecutor in connection with such inspection
or copying, file an application for revocation of or alteration to the dis- position with the competent court corresponding with the
public prose-
cutor s office in which the relevant record is preserved.
(7) Articles 418 and 419 shall apply mutatismutandis to the objection
under paragraph (6).
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
CHAPTER Ⅶ SERVICE
Article 60 (Filing of Reports Subject to Service)
(1) In cases where the defendant, legal representative, representative, defense counsel or assistant has no dwelling or office where
documents can be served, situated in the jurisdiction of the court, he shall appoint a person who has a dwelling or office situated
in the jurisdiction of the court as his receiver and submit a written report signed by him and the receiver.
(2) With regard to the service, the receiver shall be regarded as the principal and his dwelling or office shall be considered
as the princi- pal s dwelling or office.
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(3) The appointment of the receiver shall have effect for courts of all
instances located in the same jurisdiction.
(4) The provisions of the preceding three paragraphs shall not apply to those who are under physical detention.
Article 61 (Service by Mail)
(1) In cases where a person who is required to report the residence or business office or the appointment of a receiver fails to do
so, documents may be served by mail by the court official or by any other suitable
method. <Amended by Act No. 8496, Jun. 1, 2007>
(2) In cases where the document is served by mail, it shall be considered as served when the document is delivered.
Article 62 (Service to Public Prosecutor)
Service of documents to a public prosecutor shall be made to public prosecutor s office to which he belongs.
Article 63 (Cause of Service by Public Notice)
(1) When the dwelling, office or present residence of the defendant is unknown, the service may be made by public notice.
(2) The provisions of the preceding paragraph shall also apply when the
service cannot be made by any other means in cases where the defen- dant is present in a place over which the court has no territorial
juris-
diction.
Article 64 (Method of Service by Public Notice)
(1) Service by public notice may be made only when a court so orders in accordance with the Supreme Court Regulations.
(2) Service by public notice shall be made by the court official preserv- ing the documents to be served and by his putting a reason
thereof on
the court bulletin board to show it to the public. <AmendedbyActNo.705,
Sep. 1, 1961; Act No. 8496, Jun. 1, 2007>
(3) The court may order publication of the reason mentioned in the pre- ceding paragraph in the Official Gazette or newspapers. <AmendedbyAct
No. 705, Sep. 1, 1961>
(4) The first service by public notice shall become effective two weeks after the date of the public notice mentioned in paragraph (2): Pro- vided, That any second or subsequent service by public notice shall be- come effective five days after the date of public notice. <Amended by Act
No. 705, Sep. 1, 1961>
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Article 65 (Mutatis Mutandis Application of Civil Procedure Act)
The Civil Procedure Act shall apply mutatismutandis in respect to ser-
vice of documents except as otherwise provided in Acts. <AmendedbyAct
No. 8496, Jun. 1, 2007>
CHAPTER Ⅷ PERIOD OF TIME
Article 66 (Calculation of Period of Time)
(1) In calculation of periods of time, those that are calculated by the hour shall be to run immediately, while in the calculation
of days, months or years, the first day shall not be included: Provided, That the first day of a period of prescription and detention shall be counted as one day
irrespective of the number of hours involved.
(2) A fixed period of time by year or month shall be calculated in accor- dance with the calendar.
(3) If the last day of a period falls on a public holiday or a Saturday,
it shall not be included in the calculation: Provided, That this shall not
apply to the case of a period of prescription and detention. <Amendedby
Act No. 8730, Dec. 21, 2007>
Article 67 (Extension of Legal Period)
A legal period may be extended as prescribed by the Supreme Court
Regulations in accordance with the distance between the place of dwell- ing or office of the person who is required to comply
with procedural
acts and the location of the court or the public prosecutor s office, and with the extent of inconvenience in transportation and
communication.
[This Article Wholly Amended by Act No. 5054, Dec. 29, 1995]
CHAPTER Ⅸ SUMMONS AND DETENTION OF DEFENDANT
Article 68 (Summons)
A court may summon a defendant.
Article 69 (Definition of Detention)
For the purpose of this Act, detention shall include compulsory appear- ance and confinement.
Article 70 (Causes for Detention)
(1) The court may detain the defendant when there is reasonable ground
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to suspect that he has committed a crime and he falls under any of the
following subparagraphs: <Amended by Act No. 5054, Dec. 29, 1995>
1. When he has no fixed dwelling;
2. When there is reasonable ground enough to suspect that he may de- stroy evidence; and
3. When he flees or there is reasonable ground enough to suspect that
he may flee.
(2) Every court shall take into consideration the seriousness of a crime, risk of repetition of the crime, anticipated harm to
the victim, impor- tant witnesses, or such, in examining grounds for detention pursuant
paragraph (1). <Newly Inserted by Act No. 8496, Jun. 1, 2007>
(3) As regards a case that involves a fine not exceeding 500,000 won maximum, disciplinary lockup, or minor fine, the
defendant shall not
be subject to detention, except in the case of paragraph (1) 1. <Amended by Act No. 2450, Jan. 25, 1973; Act No. 5054, Dec. 1995>
Article 71 (Effect of Compulsory Appearance)
The defendant who has been made a compulsory appearance shall be re- leased within twenty-four hours from the time he was taken into
custody
when it is determined to be unnecessary to detain him.
Article 71-2 (Confinement after Compulsory Appearance)
A court may, if deemed necessary to confine a defendant taken into cus- tody, confine the defendant in a correctional facility, a
detention house, or a police station s jail. In such instance, the confinement period may
not exceed 24 hours from the time of being taken into custody.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 72 (Detention and Notice of Cause)
The defendant shall not be placed under detention before having been informed of the gist of facts constituting the offense,
of the cause for
detention and of the fact that he may select a defense counsel, and before
the court has given him the opportunity to defend himself: Provided,
That the foregoing shall not apply to a fugitive defendant. <Amended by
Act No. 3955, Nov. 28, 1987; Act No. 8496, Jun. 1, 2007>
Article 73 (Issuance of Warrant)
The summons of a defendant shall be effected by issuing a writ of sum- mons, and the confinement or compulsory appearance shall
be effected
by a warrant of detention.
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Article 74 (Form of Writ of Summons)
A writ of summons shall contain the name and address of the defendant,
the name of the crime, the date, time and place for appearance; a state-
ment that a warrant of detention may be issued if there is apprehension
to suspect he may flee in cases where he fails to appear without good
reason, and the name and seal of the presiding judge or commissioned
judge issuing the writ. <Amended by Act No. 5054, Dec. 29, 1995>
Article 75 (Form of Warrant of Detention)
(1) A warrant of detention shall contain the name and address of the
defendant, the name of the crime, essential facts concerning the public
action, the place to bring the defendant or prison where he is to be de-
tained, the date of issue, effective period of the writ and a statement
that the warrant shall not be executed after the lapse of such period
whence it shall be returned to the court of issuance, and the signature
and seal of the presiding judge or commissioned judge issuing the war-
rant.
(2) In cases where the name of the defendant is uncertain, he may be
identified by the description of his countenance, build, or other features
identifying him.
(3) In cases where the dwelling of the defendant is uncertain, an entry
for the dwelling may be omitted.
Article 76 (Service of Writ of Summons)
(1) Writs of summons shall be served.
(2) If the defendant submits a document stating that he will appear on
a date scheduled for hearing, or if the court orders the defendant orally,
who appears on a date for hearing, to appear on the next date for hearing,
it shall have the same effect as service of a writ of summons.
(3) In cases where his appearance has been orally ordered pursuant to
the preceding paragraph, the gist thereof shall be entered in the protocol.
(4) The defendant who is detained in a prison or detention house may
be summoned by serving the notice of summons to a correctional officer.
<Amended by Act No. 1500, Dec. 13, 1963; Act No. 8496, Jun. 1, 2007>
(5) When the defendant has received a notice of summons from a cor- rectional officer, the notice shall have the same effect as the service of the writ of summons. <AmendedbyActNo.1500,Dec.13,1963;ActNo.8496,Jun.
1, 2007>
Article 77 (Requisition of Detention)
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(1) A court may requisition a judge of a district court of the place where
the defendant is presently located to detain the defendant.
(2) In cases where the defendant is not present in the territorial juris-
diction of the requisitioned judge, such judge may in turn requisition a
judge of a district court of the place where the defendant is located.
(3) The requisitioned judge shall issue a warrant of detention.
(4) The provisions of Article 75 shall apply mutatis mutandis to the
warrant of detention provided in the preceding paragraph.
Article 78 (Procedure for Detention by Requisition)
(1) The judge who has issued a warrant of detention by requisition in
case of the preceding Article shall, within twenty-four hours from the
time when the defendant is brought in, make an inquiry as to whether
any mistake has been made as to his identity.
(2) If there has been no mistake as to the identity of the defendant, he
shall be promptly delivered to the designated court.
Article 79 (Order of Appearance or Accompany)
The court may, where necessary, order the defendant to appear or be ac-
companied to the designated place.
Article 80 (Urgent Measures)
In case of urgency, a presiding judge may take measures provided for in
Articles 68 through 73, 76, 77 and the preceding Article, or have a mem-
ber of the collegiate court take such measures.
Article 81 (Execution of Warrant of Detention)
(1) A warrant of detention shall be executed by a judicial police officer under the direction of a public prosecutor: Provided, That in case of urgency, the execution may be directed by a presiding judge, a commis-
sioned judge, or a requisitioned judge.
(2) In the case of the proviso of paragraph (1), a warrant of detention
may be executed by a court official. In such case, the court official may,
if necessary, demand a judicial police officer, correctional officer, or court
bailiff to assist him, or may execute it outside the jurisdiction. <Amended
by Act No. 8496, Jun. 1, 2007>
(3) A warrant of detention issued against the defendant who is in a pri- son or detention house shall be executed by a correctional officer under the direction of a public prosecutor. <Amended by Act No. 1500, Dec. 13, 1963;
Act No. 8496, Jun. 1, 2007>
Article 82 (Preparation of Several Warrants of Detention)
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(1) The warrant of detention against the defendant may be issued in
plurality to several judicial police officials.
(2) In case of the preceding paragraph, the fact shall be entered in each
warrant of detention.
Article 83 (Execution and Requisition of Warrant of Detention outside
Jurisdiction)
(1) A public prosecutor may, where necessary, conduct execution of a
warrant of detention outside the jurisdiction, or request it to be con-
ducted by a public prosecutor who is in the competent jurisdiction.
(2) A judicial police official may, where necessary, execute a warrant
of detention outside the jurisdiction, or request it to be executed by a
judicial police officer who is in the competent jurisdiction.
Article 84 (Request for Investigation to Chief of High Public Prosecu- tor s Office and Chief of District Public Prosecutor s Office)
When the present location of the defendant is uncertain, a presiding
judge may commission the chief of the High Public Prosecutor s Office
or district public prosecutor s office to conduct an investigation and
execute a warrant of detention. <Amended by Act No. 7078, Jan. 20, 2004>
Article 85 (Procedure for Execution of Warrant of Detention)
(1) In executing a warrant of detention, it shall be shown to the defen-
dant without fail, who shall be promptly taken to court designated or
other place.
(2) In executing a warrant of detention as provided in Article 77 (3),
the defendant shall be brought before the judge who has issued the
warrant.
(3) In case of urgency, even if the warrant of detention is not in hand,
the warrant may be executed after the defendant has been informed of
the facts concerning the public action and of the fact that the warrant
has been issued.
(4) Upon completion of the execution as provided in the preceding par-
agraph, the warrant of detention shall be shown as soon as possible.
Article 86 (Provisional Detention of Defendant under Guard)
In cases where the defendant against whom a warrant of detention has
been executed is to be kept under guard, he may, if necessary, be de-
tained provisionally in the nearest prison or detention house. <Amended
by Act No. 1500, Dec. 13, 1963>
Article 87 (Notice of Detention)
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(1) When the defendant is detained, his defense counsel shall be no-
tified of the gist of facts concerning the name of offense, the time and
place of detention, the gist of charge and the cause for detention. If the
defendant does not have a defense counsel, the person designated by
the defendant from among the persons mentioned in Article 30 (2) shall
be informed of the facts of the case and that he may select a defense
counsel. <Amended by Act No. 3955, Nov. 28, 1987; Act No. 5054, Dec. 29, 1995>
(2) The notice provided for in paragraph (1) shall be made in writing
without delay. <Amended by Act No. 3955, Nov. 28, 1987>
Article 88 (Detention and Notice of Facts, etc. concerning Public Ac- tion)
When the defendant is detained, he shall immediately be informed of
the facts concerning the public prosecution against him and of the facts
that he may select his defense counsel.
Article 89 (Interview with Detained Defendant and Medical Examina- tion)
The defendant who is under detention may, insofar as the laws permit,
interview with any other persons, or deliver to or receive from them doc-
uments or other things and also take medical examination and treat-
ment from a doctor.
Article 90 (Application for Defense Counsel)
(1) The defendant who has been detained may apply to the court or to
the warden of a prison or detention house or his agent, for the selection
of a defense counsel after designating an attorney-at-law.
(2) The court or the warden of a prison or detention house or his agent
who has received such application as referred to in the preceding para-
graph shall promptly give notice of such fact to the attorney-at-law des-
ignated by the defendant. <Amended by Act No. 1500, Dec. 13, 1963>
Article 91 (Interview with Person Other than Defense Counsel)
When there exist reasonable grounds to suspect that the defendant under
detention may flee or destroy evidence, a court may, upon request of a
public prosecutor or exofficio, forbid him, by a ruling, to interview with
persons other than those mentioned in Article 34, or to examine docu-
ments or other things which he may receive from or deliver to such per-
sons, and further forbid him to deliver, receive, or seize such things:
Provided, That the receipt and delivery of clothing, food or medical sup-
plies shall not be forbidden nor they shall be seized.
- 25 -
Article 92 (Detention Period and Its Renewal)
(1) The period of detention shall be two months. <AmendedbyActNo.8496, Jun. 1, 2007>
(2) Notwithstanding paragraph (1), the period of detention may be re- newed by a court ruling only twice by two months each
time for each
grade, if particularly necessary to continue detention: Provided, That it
may be renewed three times or less if it is unavoidable and necessary
for an appellate court to hold an additional hearing for the examination on the evidence requested by a defendant or a defense counsel,
a writ- ten statement submitted to supplement the cause of appeal, or for any other reason. <Amended by Act No. 8496, Jun. 1, 2007>
(3) Any period during which the proceedings of a public trial is sus- pended and period for arrest, confinement or compulsory appearance
before the institution of public trail in accordance with the provisions of Articles 22, 298 (4), 306 (1) and (2), shall not
be added to the com- putation of the period mentioned in paragraphs (1) and (2). <Newly In-
serted by Act No. 705, Sep. 1, 1961; Act No. 5054, Dec. 29, 1994; Act No. 8496, Jun. 1,
2007>
Article 93 (Rescission of Detention)
When the grounds for detention have ceased to exist, the court shall, upon request of a public prosecutor, the defendant or his defense
counsel or
persons specified in Article 30 (2), or exofficio, rescind the detention,
by means of a ruling.
Article 94 (Motion for Release on Bail)
A defendant under detention, his defense counsel, legal representative, spouse, lineal relative, sibling, family member, cohabitant, or employer may file a motion for release of the defendant on bail with the compe- tent court.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 95 (Compulsory Release on Bail)
When a motion for release on bail has been filed, it shall be allowed ex- cept in the following cases: <AmendedbyActNo.2653,Dec.20,1973;ActNo.5054, Dec. 29, 1994>
1. When the defendant commits an offense punishable with death pen- alty, imprisonment for life or imprisonment or imprisonment without
prison labor exceeding ten years for a maximum period;
2. When the defendant is accumulative offender or commits habitual
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crimes;
3. When there is reasonable ground to suspect that the defendant has destroyed or may destroy evidences;
4. When there is reasonable ground to suspect that the defendant flees or is likely to flee;
5. When the dwelling of the defendant is uncertain; and
6. When there is reasonable ground to suspect that the defendant does or may do harm to life, body or property of a victim, a person
who is deemed to know the facts necessary for the public trial of the case,
or a relative thereof.
[This Article Wholly Amended by Act No. 2450, Jan. 25, 1973]
Article 96 (Voluntary Release on Bail)
A court may, by a ruling, if it is deemed proper, permit release on bail upon a motion of those who are specified in the provisions of Article 94 or exofficio, irrespective of the provisions of Article 95. <AmendedbyAct
No. 5054, Dec. 29, 1995>
Article 97 (Cancellation of Release on Bail and Detention and Opinions of Public Prosecutors)
(1) The presiding judge shall seek an opinion from the public prosecutor
concerned before he makes a ruling whether to release on bail. <Amended by Act No. 8496, Jun. 1, 2007>
(2) The preceding paragraph shall also apply to a ruling on cancella- tion of detention, except for the cancellation upon a motion
of public prosecutors and emergency situation. <AmendedbyActNo.5054,Dec.29,1995>
(3) The public prosecutor concerned shall, upon receiving a request for his opinion under paragraphs (1) and (2), communicate his
opinion with- out delay. <Newly Inserted by Act No. 8496, Jun. 1, 2007>
(4) The public prosecutor concerned may file an immediate appeal against a ruling to cancel detention. <Amended by Act No. 5054, Dec. 29, 1995>
[This Article Wholly Amended by Act No. 2450, Jan. 25, 1973]
Article 98 (Conditions of Release on Bail)
A court shall, when it grants a permission for release on bail, put one or more conditions out of the following conditions to the
extent as may
be necessary and proper:
1. The defendant shall submit a letter of undertaking to promise that he shall not destroy evidences and make an appearance
before the
- 27 -
court at the time and place designated by the court;
2. The defendant shall submit a letter of undertaking to promise that he shall pay an amount equivalent to the bail determined
by the court;
3. The defendant shall accept measures taken by the court to prevent
him from escaping by circumscribing his dwelling to a place desi- gnated by the court or require him to obtain a permission
from the
court if it is necessary to alter such circumscription;
4. The defendant shall not commit any act of doing harm to the life, body, or property of a victim, a person who is believed
to know a true
fact necessary for the trial of the case or a relative of such person,
nor approach the residence, workplace, or neighborhood of such per- son;
5. The defendant shall submit a letter of guarantee prepared by any
person other than the defendant for assurance of the defendant s appearance;
6. The defendant shall take an oath that he would not go abroad without
a permission of the court;
7. The defendant shall deposit an amount of money required for recov- ery of the victim s rights or offer an asset equivalent to such
amount
as collateral in the manner specified by the court;
8. The defendant or a person designated by the court shall pay the bail or offer an asset as collateral; and
9. The defendant shall fulfill other conditions placed by the court as appropriate for assuring of the defendant s appearance.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 99 (Factors to be Considered in Attaching Conditions to Re- lease on Bail)
(1) A court shall take the following factors into consideration in attach-
ing the conditions under Article 98:
1. The nature and circumstances of the crime;
2. The weight of evidence against the defendant;
3. Criminal record, character, background, and financial ability of the defendant; and
4. Matters relating to circumstances after the crime such as compen-
sation for victims.
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(2) A court may not put any condition that the defendant is unable to
fulfill by his own efforts or with his own assets.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 100 (Procedure for Execution of Release on Bail)
(1) A ruling for permitting the release on bail may not be executed un- less and until the conditions under subparagraphs 1, 2, 5,
7, and 8 of Article 98 are fulfilled, and a court may, if deemed necessary, make a decision to execute the permission for release
on bail only after other conditions, if any, are fulfilled as well. <AmendedbyActNo.8496,Jun.1,2007> (2) A court may permit a person other than the person demanding bail to pay the bail money.
(3) A court may permit substitution of bail money with negotiable se- curities or a guarantee letter submitted by any person other
than the defendant. <Amended by Act No. 8496, Jun. 1, 2007>
(4) A statement that the bail money shall be paid on demand shall be entered in the guarantee of the preceding paragraph.
(5) A court may demand an administrative agency or any other organi- zation, public or private, to take appropriate measures as may
be neces- sary for a defendant who is released by a ruling for release on bail to fulfill the conditions of the release. <NewlyInsertedbyActNo.8496,Jun.1,2007>
Article 100-2 (Fine for Negligence on Appearance Guarantor)
(1) If a defendant who was released by a ruling to release on bail under
the condition set forth in subparagraph 5 of Article 98 does not make
an appearance on a designated date without any justifiable reason, the
court may impose a fine for negligence not exceeding five million won on
the guarantor who assured the defendant s appearance by its ruling.
(2) An immediate appeal may be filed against a ruling under para-
graph (1).
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 101 (Suspension of Execution of Detention)
(1) A court may, by means of a ruling, if it deems it proper, suspend
the execution of detention by placing the defendant under the supervi-
sion of relatives, protective institutions, and/or other proper persons, or
restricting area of his dwelling.
(2) Before making the ruling referred to in paragraph (1), the court shall seek opinions from a public prosecutor: Provided, That exceptions
shall be made in case of emergency.
- 29 -
(3) Public prosecutors may file immediate appeals to the ruling under
paragraph (1).
(4) If a motion for release is made for a member of the National As- sembly who is detained pursuant to Article 44 of the
Constitution of the
Republic of Korea, execution of warrant of detention shall ipsofacto be
suspended. <Amended by Act No. 3282, Dec. 18, 1980; Act No. 3955, Nov. 28, 1987>
(5) The Prosecutor General who receives the notification of the motion for release referred to in the preceding paragraph, shall
immediately
direct the release and notify the competent court of the reason therefor.
[This Article Wholly Amended by Act No. 2450, Jan. 25, 1973]
Article 102 (Change of Conditions on Release on Bail and Revocation) (1) A court may, exofficio or upon a motion from a person specified in Article 94, amend the conditions of release of a defendant on bail or sus-
pend the performance of the conditions for a certain period of time. (2) If a defendant comes to fall under any of the
following subpara- graphs, the court may revoke the release on bail or the suspension of execution of detention, exofficioor upon a motion from the public pros- ecutor: Provided, That the suspension of execution of a detention war- rant under Article 101 (4) may not be revoked during the session con- cerned:
1. If the defendant escaped;
2. If there is a ground enough to believe that the defendant is likely to escape or destroy evidence of the crime;
3. If the defendant did not make an appearance without a justifiable reason upon receiving a summons;
4. If the defendant did harm to the life, body, or property of a victim, a person who is believed to know a true fact necessary for
the trial
of the case, or a relative of such person, or if there is a ground enough
to believe that the defendant is likely to do harm to such person; and
5. If the defendant breached a condition placed by the court.
(3) A court may, if a defendant breaches any condition attached to the lease on bail without a justifiable reason, impose a
fine for negligence not exceeding ten million won on the defendant or may put the defen-
dant under detention for a maximum period of twenty days by a ruling.
(4) An immediate appeal may be filed against a ruling under para- graph (3).
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제12편 형사법 형사소송법
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 103 (Confiscation of Bail Money)
(1) A court may, when it revokes the release of a defendant on bail, con- fiscate all or part of the bail money or collateral by its
ruling, exofficio or upon a motion of the public prosecutor.
(2) If a defendant who had been released under the condition to pay the bail money or offer an asset as collateral did not make
an appearance or escaped upon receiving a summons after he had been sentenced to a punishment on account of an identical crime
and the sentence was fi- nally affirmed, the court shall, exofficio or upon a motion of the public prosecutor, confiscate all or part of the bail money or collateral by its ruling.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 104 (Refund of Bail Money, etc.)
When detention or release on bail is rescinded, or the term of the war-
rant of detention expires, the bail money or collateral which is not confis-
cated shall be returned within seven days on demand. <Amended by Act
No. 8496, Jun. 1, 2007>
Article 104-2 (Invalidation of Conditions of Release on Bail)
(1) When a detention warrant becomes ineffective, the conditions of re-
lease on bail shall also become invalid simultaneously.
(2) When the release of a defendant on bail is revoked, the conditions
attached thereto shall also become invalid as provided in paragraph (1):
Provided, the condition under subparagraph 8 of Article 98 shall remain
effective.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 105 (Appeal and Ruling of Detention)
In regard to a case for which the time for appeal has not expired or in which the appeal is pending, a ruling for renewal of the period of deten- tion, rescission of detention, suspension of execution of detention or re- lease on bail, or rescission of suspension thereof shall be rendered by the original court so far as the record of trial is filed with the original court.
CHAPTER Ⅹ SEIZURE AND SEARCH
Article 106 (Seizure)
(1) When it is necessary, a court may seize any articles which, it be-
- 31 -
lieves, may be used as evidence, or liable to confiscation: Provided, That
the same shall not apply to the cases where there exist other provisions
in Acts.
(2) A court may designate articles to be seized and order the owner,
possessor, or custodian thereof to produce such articles.
Article 107 (Seizure of Postal Matters)
(1) A court may seize or issue an order to produce postal matters or
papers relating to telegrams dispatched by or to the defendant, which
are in custody or possession of a postal office or any other person trans-
acting communication business.
(2) Postal matters or papers relating to telegrams other than those men-
tioned in the preceding paragraph, which are in the custody or posses-
sion of a postal office or any other person transacting communication
business, may be seized or caused to be produced, only when there are
circumstances which warrant their being considered to be connected with
the case in hand.
(3) When any disposition has been effected under the provisions of the
preceding two paragraphs, notice of such facts shall be given to the sender or to the addressee: Provided, That this shall not apply if there
is apprehension that such notification may obstruct judicial proceedings.
Article 108 (Seizure of Voluntarily Produced Articles, etc.)
Articles which have been dropped or left or voluntarily produced by their
owner, possessor or custodian may be retained without a warrant of
seizure.
Article 109 (Search)
(1) A court may, if necessary, search the person, effects or dwelling or
any other place of the defendant.
(2) The person, effects, dwelling or any other place of a person other
than the defendant may be searched only when there are circumstances
which warrant the belief that there are articles liable to seize therein.
Article 110 (Military Secrets and Seizure)
(1) Seizure and search shall not be executed in a place where secret
military matters might be endangered without permission of the person
in charge.
(2) The person in charge referred to in the preceding paragraph may
not refuse to grant such consent, except where compliance would be
prejudicial to important interests of the State.
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제12편 형사법 형사소송법
Article 111 (Public Secrets and Seizure)
(1) In respect to articles held in the custody or possession of a person
who is or was a public official, such articles may be seized only with the
consent of such public office concerned, or its supervisory office, if the
person or the public office to which he belongs or belonged declares that
they relate to an official secret.
(2) Such office or its supervisory office may not refuse to give such
consent, except where compliance would be prejudicial to important in-
terests of the State.
Article 112 (Professional Secrets and Seizure)
A person who is or was a licensed advocate, patent attorney, notary
public, certified public accountant, licensed tax accountant, public scriv-
ener, doctor, herb doctor, dentist, pharmacist, druggist, midwife, nurse,
or a religious functionary may resist seizure of articles held in his cus-
tody or possession in consequence of mandate he has received in the
course of his profession and which relates to secrets of other persons:
Provided, That this shall not apply if the principal has consented to such
seizure, or if it is necessary for important public interests. <Amended by
Act No. 3282, Dec. 18, 1980; Act No. 5454, Dec. 13, 1997>
Article 113 (Warrant of Seizure or of Search)
A warrant of seizure or of search shall be issued in cases where a sei- zure or search is to be effected other than in open court.
Article 114 (Forms of Warrants)
(1) A warrant of seizure or of search shall contain the name of the defen-
dant and the offense, the articles to be seized, or the place, person or
articles to be searched, date of its issue, effective period, and a state-
ment that the warrant shall not be executed after the lapse of such
period, and shall be returned to the court of issuance, the signature and
seal of the presiding judge or commissioned judge, and such other mat-
ters as prescribed by the Supreme Court Regulations.
(2) The provisions of Article 75 (2) shall apply mutatismutandisto the
warrant referred to in the preceding paragraph.
Article 115 (Method of Execution of Warrant)
(1) A warrant of seizure or of search shall be executed by a judicial po- lice official under the direction of a public prosecutor:
Provided, That in
case of need, the presiding judge may cause a court official to execute the warrant. <Amended by Act No. 8496, Jun. 1, 2007>
- 33 -
(2) The provisions of Article 83 shall apply mutatis mutandis to the
execution of a warrant of seizure or of search.
Article 116 (Notabilia)
In the execution of a warrant of seizure or of search, the person who ex- ecutes it shall not disclose information to unauthorized persons and take necessary caution not to injure the reputation of persons upon whom the warrant is to be served.
Article 117 (Assistance for Execution)
In the execution of a warrant of seizure or of search, a court official may,
if necessary, request assistance to a judicial police official. <Amended by
Act No. 8496, Jun. 1, 2007>
Article 118 (Suggestion of Warrant)
A warrant of seizure or of search shall be shown to the person upon whom
the warrant is to be served.
Article 119 (Prohibition of Entrance or Leave during Execution)
(1) During the execution of a warrant of seizure or of search, persons
may be forbidden to enter or leave the place.
(2) Any person who does not comply with the prohibition of the pre-
ceding paragraph may be forced to withdraw or be placed under guard
until the execution of the warrant is completed.
Article 120 (Execution of Warrant and Necessary Measures)
(1) In the execution of a warrant of seizure or of search, locks may be
removed or seals opened, or any other necessary measures taken.
(2) The measures of the preceding paragraph may be taken for the seized
articles.
Article 121 (Execution of Warrant and Presence of Parties)
A public prosecutor, the defendant or his defense counsel may be pre-
sent when a warrant of seizure or of search is being executed.
Article 122 (Execution of Warrant and Notice of Presence)
In cases where a warrant of seizure or of search is to be executed, the
persons listed in the preceding Article shall be notified of the date and place of execution in advance: Provided, That this shall not apply to the
case where a person prescribed in the preceding Article, clearly expresses
his will in advance to the court that he does not desire to be present
or to the case of urgency.
Article 123 (Execution of Warrant and Presence of Responsible Party) (1) In cases where a warrant of seizure or of search is to be executed in a public office, military airplane, vessel or vehicle, the responsible
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제12편 형사법 형사소송법
person shall be notified to be present.
(2) Where, apart from cases governed by the provisions of the preced-
ing paragraph, a warrant of seizure or of search is to be executed in the
dwelling of a person, or in premises, building, airplane, vessels or vehi-
cles which are guarded, the owner, guard or person acting for them shall
be present.
(3) In cases where the persons mentioned in the preceding paragraph
are not available, a neighbor or an official of the local public entity shall
be present.
Article 124 (Search of Female)
When the body of a woman is searched, another adult woman shall be
present.
Article 125 (Restriction on Execution at Night)
Before sunrise and after sunset, the dwelling of a person, or premises,
a building, airplane, or vessel or vehicle under guard shall not be en-
tered for the purpose of the execution of a warrant unless the warrant
includes a statement that it is to be executed at night.
Article 126 (Exception of Limitation of Execution at Night)
The restriction provided in the preceding Article shall not be observed
in respect to the execution of a warrant of seizure or of search in the
following places:
1. Places which are considered to be habitually used for gambling and
acts prejudicial to good morals; and
2. Inns, restaurants, or other places to which the public has access at
night-time, but only during the hours when they are open to the
public.
Article 127 (Suspension of Execution and Necessary Measures)
When it is necessary in cases where the execution of a warrant of sei-
zure or of search is suspended, the place concerned may be closed or a
guard may be placed there until the execution is completed.
Article 128 (Delivery of Certificate)
When a search has been made without discovering any evidence or ar- ticles liable to confiscation, a certificate to that effect shall be delivered on demand to the person who has been object of such search.
Article 129 (Delivery of Inventory of Property)
In case of seizure, an inventory of the seized property shall be made and given to the owner, possessor or custodian of the property, or to the
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제12편 형사법 형사소송법
person corresponding thereto.
Article 130 (Custody and Abrogation of Seized Articles)
(1) In respect to articles seized which can not be conveniently trans-
ported or held in custody, either a guard may be placed over them or
the owner or some other person may be asked to voluntarily assume
custody thereof.
(2) Article seized may be destroyed or discarded if there is apprehen-
sion that they may cause danger.
(3) A seized article may be destroyed or scrapped with consent of the
owner or a person who has an authority to consent, if it is banned to
manufacture, produce, possess, own, or distribute such article under Acts
and subordinate statutes and the article is perishable or it is difficult
to keep it in custody. <Newly Inserted by Act No. 8496, Jun. 1, 2007>
Article 131 (Notabilia)
Considerable care shall be exercised to prevent losses or damage, etc. to seized articles.
Article 132 (Keeping Proceeds from Seized Articles in Custody)
(1) If it is anticipated that a seized article subject to confiscation will
probably be destroyed, damaged, or perished or if the value of such arti-
cle is likely to be significantly decreased or if it is difficult to keep the
article in custody, it may be sold out and the proceeds from such sale
may be kept in custody instead.
(2) If it is impossible to determine who has a right to have a seized but
returnable article returned or to find the whereabout of a person who
has such right and it is anticipated that the seized article will probably
be destroyed, damaged, or perished or if the value of such article is like-
ly to be significantly decreased or if it is difficult to keep the article in
custody, it may be sold out and the proceeds from such sale may be kept
in custody instead.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 133 (Return or Temporary Return of Articles Seized)
(1) Seized articles may be returned to the owner without waiting the
completion of the case, on order by the court that their continued pos-
session is not necessary, and on demand of the owner, possessor, cus-
todian, or a party who has produced them, articles under seizure to be
produced as evidence may be temporarily returned.
(2) Where an article seized only for evidence, is required to be used
- 36 -
continuously by the owner or possessor, an immediately and temporar-
ily returned after photographing it, or taking other necessary measures
to preserve its original status.
Article 134 (Return of Seized Goods to Rightful Owner)
If a reason for return is apparent, wrongfully obtained goods shall be
returned to the rightful owner, before the completion of the case, by
means of a ruling.
Article 135 (Disposition of Seized Articles and Notice to Party)
In a ruling under the preceding three Articles, the public prosecutor,
the rightful owner, the defendant or his defense counsel shall be notified
in advance.
Article 136 (Commissioned Judge and Requisitioned Judge)
(1) A judge (commissioned judge) of a collegiate court may cause a sei-
zure or search to be made, or a judge (requisitioned judge) of a district
court at the place where such seizure or search is to be effected may be
requested to do so by a court.
(2) In cases where the object of a seizure or search is not in the area
under his control, a requisitioned judge may request a judge of another
district court in the jurisdiction concerned to effect it.
(3) As regards seizure or search effected by a commissioned judge or a
requisitioned judge, the provisions related to seizure or search effected
by a court shall apply mutatis mutandis.
Article 137 (Execution of Warrant of Detention and Search)
When it is necessary for the purpose of executing a warrant of deten-
tion, a public prosecutor, judicial police official or court official under
Article 81 (2) may enter the dwelling of a person, or the premises, build-
ing, airplane, vessel, or vehicle which are guarded, for search of the de-
fendant. <Amended by Act No. 8496, Jun. 1, 2007>
Article 138 (Applicable Provisions)
The provisions of Articles 119, 120, 123 and 127 shall apply mutatismu-
tandis to the search by the public prosecutor, judicial police officer, the
court official based on the provisions of the preceding Article. <Amended
by Act No. 8496, Jun. 1, 2007>
CHAPTER Ⅺ EVIDENCE BY INSPECTION
Article 139 (Evidence by Inspection)
If it is necessary for the purpose of discovering facts, a court may effect
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제12편 형사법 형사소송법
an inspection of evidence.
Article 140 (Evidence by Inspection and Necessary Disposition)
Persons may be examined, corpses dissected, graves opened, things broken
or other necessary steps may be taken to effect proper inspection of
evidence.
Article 141 (Caution for Physical Examination)
(1) In examining persons, the sex, age, condition of health and other
circumstances of the person to be inspected shall be taken into consider-
ation and exercise enough care not to damage his or her health and re-
putation.
(2) The examination of a person who is not the defendant may be car-
ried out only when there is a cogent reason indicating a source of evi-
dence.
(3) In cases where the body of a woman is examined, a doctor or an-
other woman of full age shall be present.
(4) In case of dissecting a corpse or of opening a grave, proper respect
for the remains shall be observed, and the bereaved family shall be no-
tified in advance.
Article 142 (Physical Examination and Summons)
A court may summon persons other than the defendant either to the court
or to other place designated for the purpose of examining the person.
Article 143 (Restriction of Time)
(1) Before sunrise and after sunset, the dwelling of a person, or the
premises, buildings, airplane, vessel or vehicles guarded by persons may
be entered for the purpose of inspection only with the consent of the owners or guards or person acting for them: Provided, That this shall
not apply when there is apprehension that the object of inspection might not be available after sunrise.
(2) Inspection commenced before sunset may be continued after sunset. (3) In the places mentioned in Article 126, the restriction
specified in paragraph (1) need not be observed.
Article 144 (Assistance for Inspection)
A judicial police official may, if necessary, be ordered to assist in an
inspection.
Article 145 (Applicable Provisions)
The provisions of Articles 110, 119 through 123, 127 and 136 shall apply
mutatis mutandis to inspection of evidence.
- 38 -
CHAPTER Ⅻ EXAMINATION OF WITNESS
Article 146 (Qualification of Witness)
Except as otherwise provided in Acts, a court may examine any person as a witness.
Article 147 (Public Secrets and Qualification of Witness)
(1) If, in respect to facts of which a person who is or was a public official has obtained knowledge in the course of his duties, either such person himself, or the public office to which he belongs or belonged, declares that they relate to official secrets, he shall not be examined as a witness without the consent of the competent public office or supervisory office. (2) Such office may not refuse to give such consent, except where com- pliance would be prejudicial to important interests of the State.
Article 148 (Criminal Responsibility of Near Relative and Refusal of
Witness)
A person may refuse to testify when such testimony may be the cause of criminal prosecution or public action, or conviction for him
or any per- son in the following classes: <Amended by Act No. 7427, Mar. 31, 2005>
1. A relative or a person with whom he had a kinship; or
2. Legal representative or supervisor of guardianship.
Article 149 (Secrets in Professional Line and Refusal of Witness)
A person who is or was an attorney-at-law, patent attorney, notary public, certified public accountant, certified tax accountant,
public scrivener, doctor, herb doctor, dentist, pharmacist, druggist, midwife, nurse, or re- ligious functionary may refuse to testify
in respect to facts of which he has obtained knowledge in consequence of a mandate he has received in the course of his profession
and which relate to secrets of other per-
sons: Provided, That this shall not apply if the principal has consented,
or if the testimony is deemed necessary for the important public inter-
est. <Amended by Act No. 3282, Dec. 18, 1980; Act No. 5454, Dec. 13, 1997>
Article 150 (Vindication of Reason for Refusal of Testimony)
A person who refuses to testify shall offer presumptive proof as to his reason for refusing to testify.
Article 150-2 (Summon for Witness)
(1) A court shall summon a person as a witness by serving a subpoena, communicating by telephone, electronic mail, or any other reasonable means.
- 39 -
제12편 형사법 형사소송법
(2) A person who filed a motion to call a witness owes a duty to make
reasonable efforts to make the witness appear before the court.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 151 (Failure in Appearance of Witness and Fine for Negligence) (1) If a witness to whom a subpoena was served does not appear with- out a justifiable reason, the court may order to the witness
to pay the litigation expense incurred by his non-appearance by a ruling, and may also impose a fine for negligence not exceeding
five million won upon him. The foregoing shall also apply in cases where there is an action made pursuant to Article 76 (2) and
(5), which shall be applicable mutatis mutandis pursuant to Article 153, with the same effect as a subpoena. (2) If a witness to whom a fine for negligence under paragraph (1) was
imposed by court does not make an appearance again without a justifi- able reason, the count shall put the witness under confinement
for a maximum period of seven days, by a ruling.
(3) A court shall summon a witness on the date set for a trial for con- finement and shall examine on whether there is any justifiable
ground under paragraph (2).
(4) The confinement of a witness shall be executed by a judicial police officer, correctional officer, court bailiff, or a court official
in compliance with an order of the presiding judge by putting him in a correctional
facility, a detention house, or a police station jail.
(5) When a witness is confined in a detention facility under paragraph (4)
after a trial to put him under confinement, the head of the detention facility shall notify the court of the fact immediately.
(6) The court shall, upon receiving the notice under paragraph (5), hold
a hearing for examination of witness.
(7) When a witness gives testimony while he is under confinement pur- suant to rulings to confine, the court shall cancel the ruling
to confine immediately and shall issue an order to release the witness.
(8) An immediate appeal may be filed against a ruling made pursuant to paragraphs (1) and (2). In such instance, Article 410 shall
not apply.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 152 (Disobedience to Summons and Compulsory Appearance)
A witness who does not obey a summons without justifiable reason may be brought by a compulsory appearance measure.
- 40 -
Article 153 (Applicable Mutatis Mutandis Provisions)
The provisions of Articles 73, 74 and 76 shall apply mutatismutandis
to the summons of a witness.
Article 154 (Summons of Witness within Precinct of Court)
A witness who is within the precinct of a court may be examined with-
out summons.
Article 155 (Applicable Mutatis Mutandis Provisions)
The provisions of Articles 73, 75, 77, 81 through 83, and 85 (1) and (2) shall apply mutatis mutandis to the compulsory appearance of a wit- ness.
Article 156 (Oath of Witness)
A witness shall be required to take an oath before being examined: Pro-
vided,That the same shall not apply to the cases, where there exist other
provisions in Acts.
Article 157 (Forms of Oath)
(1) The oath shall be based on a written oath.
(2) The written oath shall state I swear that I will speak the truth, the
whole truth and nothing but the truth according to my own conscience
and if there is any falsehood in my statement, I shall be punished for
perjury.<.. image removed ..>
(3) A presiding judge shall have a witness read the written oath and print his name and affix his seal thereon or write his
signature: Provided,
That if the witness is not able to read or sign the written oath, a court official who participates in the trial shall act for him.
<AmendedbyActNo.
8496, Jun. 1, 2007>
(4) The oath shall be taken solemnly in the state of standing up.
Article 158 (Admonishment to Sworn Witness)
A presiding judge shall admonish the witness to be aware of the punish-
ment for perjury before being sworn.
Article 159 (Disability of Oath)
Any witness falling under any of the following subparagraphs shall be
examined without being sworn:
1. Person under 16 years of age; and
2. Person who can not understand the meaning of an oath.
Article 160 (Notice of Rights for Refusal of Witness)
A witness as described in Article 148 or 149 shall be instructed by a
presiding judge before being examined that he may refuse to testify.
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제12편 형사법 형사소송법
Article 161 (Refusal of Oath or of Witness and Fine for Negligence)
(1) When a witness refuse to swear or testify without justifiable reason,
he may, by a ruling, be punished by a fine for negligence not exceeding
500,000 won. <AmendedbyActNo.2450,Jan. 25,1973; ActNo.5054,Dec. 29,1995>
(2) An immediate appeal may be filed against the ruling mentioned in
paragraph (1). <Amended by Act No. 5054, Dec. 29, 1995>
Article 161-2 (How to Examine Witness)
(1) A witness shall be examined first by the party (public prosecutor,
defense counsel or defendant) who requested his appearance, and then
by the other party (public prosecutor, defense counsel or defendant).
(2) The presiding judge may examine the witness after the examination
mentioned in the preceding paragraph is completed.
(3) The presiding judge may, if deemed necessary, irrespective of the
provisions of the preceding two paragraphs, examine the witness at any
time, and may change the order of the examination mentioned in para-
graph (1).
(4) The method of examination of a witness who is to be examined by the court exofficioor on the application of a victim due to a crime, shall
be determined by the presiding judge. <AmendedbyActNo.3955,Nov.28,1987> (5) A member of a collegiate court may examine a witness after notify- ing the presiding judge to do so.
[This Article Newly Inserted by Act No. 705, Sep. 1, 1961]
Article 162 (Separate Examination and Confrontation)
(1) Examination of witness shall be made of each of the witnesses.
<Amended by Act No. 705, Sep. 1, 1961>
(2) In cases where a witness who has not been examined, is present in court, he shall be ordered to leave court.
(3) Where necessary, a witness may be cross-examined with other wit- nesses or the defendant.
(4) Deleted. <by Act No. 705, Sep. 1, 1961>
Article 163 (Right for Presence and for Examination of Relevant Party) (1) A public prosecutor, the defendant or his defense counsel may be pre- sent at the examination of a witness.
(2) Notice of the date and place of the examination of a witness shall be given in advance to the persons who are entitled, by virtue of the pre- ceding paragraph, to be present at the examination: Provided, That in cases where they announce clearly their desire not to be present, it shall
- 42 -
not apply.
(3) Deleted. <by Act No. 705, Sep. 1, 1961>
Article 163-2 (Presence of Persons with Reliable Relationship)
(1) When a court has a victim of a crime sit in the witness box for
examination, the court may, if deemed that the victim is likely to feel
severe uneasiness or tension in light of the age of the witness, his physical
or mental state, or any other circumstances, allow a person who has a
reliable relationship with the victim to sit in company with the victim,
exofficioor upon a motion of the victim, his legal representative, or the
public prosecutor.
(2) If a victim of a crime is less than 13 years of age, or incompetent
to discern right from wrong or make a decision due to his physical or men-
tal disability, the court shall allow a person who has a reliable relation
with the victim to sit in company with the victim, unless such company
is likely to cause a trouble in the proceedings or there is any inevitable
reason otherwise.
(3) A person who sits in company under paragraph (1) or (2) shall not
interfere with the examination by the court, examination of a party to
the case or testimony of a witness, nor commit any act that is likely to
give an undue influence on the contents of testimony of the witness.
(4) The scope of persons who have a reliable relationship and thus are
allowed to being present in company under paragraph (1) or (2), the
procedure for and manner of being present in company, and other neces-
sary matters shall be prescribed by the Supreme Court Regulations.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 164 (Demand of Inquiry)
(1) In cases where a public prosecutor, the defendant or his defense
counsel does not take part in the examination of a witness, they may
request the court to inquiry into necessary matters.
(2) In cases where the testimony of a witness without the presence of
the defendant or his defense counsel contains an unexpected and seri-
ous statement which is disadvantageous to the defendant, the court
shall give notice of the contents of such statement to the defendant or
his defense counsel.
Article 165 (Examination of Witness outside Court)
A court may summon a witness to a place other than the courtroom for examination or examine him at the place where he is, after hearing the
- 43 -
opinion of the public prosecutor, the defendant or his defense counsel,
and taking into consideration the age, vocation, health condition, and other special circumstances.
Article 165-2 (Examination of Witness through Video or Other Trans- mission System)
A court may, if deemed proper when it examines any of the following
persons as witness, examine the person through a video or any other transmission system or install a partitioning facility
to place the person
behind the facility for examination after hearing opinions of the public
prosecutor and the defendant or his defense counsel:
1. A victim of a crime under any provision of subparagraphs 1 through
3 of Article 40 of the Child Welfare Act;
2. A juvenile or a victim who shall be protected from a crime under any provision of Articles 5 through 10 of the Act on the
Prevention
of Juveniles from Sexual Abuse; and
3. A person who is deemed likely to lose peace in mind seriously due to psychological burden when the person testifies
in confrontation
with a defendant or any other person, in light of the nature of the
crime involved, the age of the witness, his physical or mental state, the relation with the defendant, or any other circumstances.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 166 (Order to Proceed and Detention)
(1) A court, by means of a ruling, when deemed necessary, may order a witness to proceed to a designated place in company.
(2) A witness may be arrested for compulsory appearance who refuses
the foregoing order without any justifiable reason.
Article 167 (Commissioned Judge or Requisitioned Judge)
(1) In cases where a witness is to be examined outside the court, a mem- ber of a collegiate court may be ordered to conduct
such examination,
or a judge of a district court at the place where the witness actually
present is may be requested to do so by a court.
(2) The requisitioned judge may, if the witness is not in his jurisdic- tion, request a judge of another district court which
has the jurisdiction over the place where he is at present to make the examination.
(3) The commissioned judge or requisitioned judge may adopt necessary measures to examine a witness in jurisdiction of another court
or pre-
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siding judge.
Article 168 (Travelling Expenses, Daily Allowances and Lodging Expenses for Witnesses)
A witness may demand travelling expenses, daily allowance and lodging
expenses in accordance with the provisions of Acts: Provided, That this shall not apply if, without good reason, he refuses to swear or to testify.
CHAPTER ⅩⅢ EXPERT EVIDENCE
Article 169 (Expert Evidence)
A court may order a person of learning or experience to give an expert evidence.
Article 170 (Oath)
(1) An expert witness shall take an oath before expert evidence is given. (2) The oath shall be based on a written oath.
(3) The written oath shall be as follows: I swear to give an expert opinion faithfully according to my own conscience, and if there
is any falsehood
in my statement, I shall be punished for the false expert opinion .
(4) The provisions of Article 157 (3) and (4), and Article 158 shall apply
mutatis mutandis to the oath of an expert witness.
Article 171 (Report on Expert Evidence)
(1) As regards a process or result of expert evidence, the expert witness shall submit it in writing.
(2) In case there are two or more expert witnesses, the report shall be submitted individually or jointly.
(3) The reason behind expert opinions shall be clearly stated.
(4) If necessary, the expert witness shall be required to explain his opinion.
Article 172 (Expert Evidence Outside Court)
(1) If necessary, a court shall allow the expert witness to give an opinion outside the court.
(2) In case of the preceding paragraph, articles needed for an inspection may be delivered to the expert witness.
(3) When expert evidence is required in respect to the mental or physical condition of the defendant, a court may, if necessary, confine
the defendant in a hospital or other suitable place for a fixed period, and when it is
- 45 -
completed, the confinement shall be terminated without delay.
(4) When the confinement as referred to in the preceding paragraph is required, a warrant of confinement for expert opinion
shall be issued.
<Amended by Act No. 2450, Jan. 25, 1973>
(5) If it is necessary for the confinement under paragraph (3), the court may, ex officio or upon request of administrators of hospitals or other places where the defendant is to be confined, order judicial police officials
to be guards of the defendant. <Newly Inserted by Act No. 2450, Jan. 25, 1973> (6) If necessary, the court may extend or shorten the period of con- finement. <Newly Inserted by Act No. 2450, Jan. 25, 1973>
(7) The provisions on detention shall apply mutatismutandis to the con- finement under paragraph (3) unless otherwise specified in this Act: Pro- vided,That exceptions shall be made to the provisions on release on bail.
<Newly Inserted by Act No. 2450, Jan. 25, 1973>
(8) The confinement under paragraph (3) shall be regarded as detention in inclusion of the number of days of unconvicted detention. <NewlyInserted by Act No. 2450, Jan. 25, 1973>
Article 172-2 (Confinement for Expert Opinion and Detention)
(1) When a warrant of confinement for expert opinion is executed against the defendant under detention, it shall be regarded that
during the period of the confinement of the defendant, execution of the detention is sus- pended.
(2) In case of paragraph (1), when the disposition of the confinement under paragraph (3) of the preceding Article is cancelled
or confinement period expires, it shall be regarded that the suspension of execution of detention is cancelled.
[This Article Newly Inserted by Act No. 2450, Jan. 25, 1973]
Article 173 (Necessary Disposition by Expert Witness)
(1) When it is necessary for the purpose of furnishing expert evidence, an expert witness may, with the permission of a court, enter
the dwelling of a person, the premises, buildings, airplanes, vessels or vehicles guarded by persons; examine the person; dissect
a corpse; open a grave, or break and alter things.
(2) A court shall, on granting the permission mentioned in the preceding paragraph, issue a warrant of permission, in which the names
of the de- fendant and, offense, place to be entered, the person to be examined, corpse
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제12편 형사법 형사소송법
to be dissected, grave to be opened, things to be destroyed, the name
of the expert witness and effective period shall be entered.
(3) The expert witness shall show the warrant of permission to the person
who is subject to the disposition mentioned in paragraph (1).
(4) The provisions of the preceding two paragraphs shall not apply to the dispositions mentioned in paragraph (1) which are
effected by an
expert witness in the courtroom.
(5) The provisions of Articles 141 and 143 shall apply mutatismutandis
to paragraph (1).
Article 174 (Presence or Question by Expert Witness)
(1) Where necessary, the expert witness may inspect or copy documents and evidence with permission of the presiding judge and may
be present at the examination of the defendant or witness.
(2) An expert witness may demand examination of the defendant or witness, or may examine him directly by permission of the presiding
judge.
Article 175 (Commissioned Judge)
A court may have member of a collegiate court take necessary measures in respect of expert evidence.
Article 176 (Presence of Parties)
(1) The public prosecutor, the defendant, or the defense counsel may be present at an examination or inquiry by an expert witness.
(2) The provisions of Article 122 shall apply mutatis mutandis to the
preceding paragraph.
Article 177 (Applicable Provisions)
The provisions of the preceding Chapter, except the provisions as to com- pulsory appearance, shall apply mutatis mutandis to expert evidence.
Article 178 (Travelling Expenses and Fees for Expert Witness)
An expert witness may demand fees for his opinion and reimbursement of any subrogated amount, in addition to travelling expenses, daily allow- ances and lodging expenses under the conditions as prescribed by Acts.
Article 179 (Expert Witness)
In case a person is examined in regard to facts in the past which he knows by virtue of special knowledge, it shall be governed by the provisions of the preceding Chapter instead of those of this Chapter.
Article 179-2 (Request of Expert Evidence)
(1) The court may, if it is deemed necessary, request the expert evidence
- 47 -
of public offices, schools, hospitals, or other associations or agencies equip-
ped with equivalent facilities. The provisions concerning oath shall not apply to this case.
(2) In case of paragraph (1), the court may have a person designated
by such public offices, schools, hospitals, or other associations or agencies explain the document of expert evidence. <Amended by ActNo. 5054, Dec. 29,
1995>
CHAPTER XIV INTERPRETATION AND TRANSLATION
Article 180 (Interpretation)
A statement by a person not versed in the Korean language shall be required to be interpreted by an interpreter.
Article 181 (Interpreter for Deaf or Mute)
A statement by deaf or mute person may be required to interpreted by an interpreter.
Article 182 (Translation)
Letters, signs or marks not in the Korean language shall be translated.
Article 183 (Applicable Provisions)
The provisions of the preceding Chapter shall apply mutatis mutandis
to interpretation and translation.
CHAPTER XV PRESERVATION OF EVIDENCE
Article 184 (Request and Procedure for Preservation of Evidence)
(1) The public prosecutor, the defendant, a suspect, or his defense counsel may, when there are reasons which may make it difficult
to use evidence unless it is preserved in advance, even prior to the date for the first public trial, request a judge to effect such
measures as attachment, inves- tigation, verification, examination of witness, or expert opinion.
(2) The judge who has received the request prescribed in the preceding paragraph has the same authority as a court or presiding judge
has,
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제12편 형사법 형사소송법
regarding the disposition of such request.
(3) When making the request mentioned in paragraph (1), the person shall offer presumptive proof as to the reason in writing.
(4) An appeal against a ruling to deny a request under paragraph (1)
may be filed within three days. <Newly Inserted by Act No. 8496, Jun. 1, 2007>
Article 185 (Inspection, etc. of Documents)
A public prosecutor, the defendant, a suspect, or defense counsel may inspect and also copy documents and evidence relating to the disposition mentioned in the preceding Article with permission of a judge.
CHAPTER XVI COSTS OF TRIAL
Article 186 (Coasts of Trial by Defendant)
(1) In pronouncing a sentence, the court shall have the defendant bear the whole or part of the trial costs: Provided, That this shall not apply in cases where the defendant fails to pay the trial costs due to his finan-
cial circumstances. <Amended by Act No. 5054, Dec. 29, 1995>
(2) Even where no sentence has been pronounced, any costs which have arisen from a cause imputable to the defendant may be charged
to him.
Article 187 (Costs of Trial by Accomplices)
The costs of trial against accomplices may be borne jointly by them.
Article 188 (Bearing of Costs for Trial by Complaint, etc.)
If a decision of innocence or acquittal pronounced in respect of a case in which public prosecution has been brought upon complaint or accu- sation, the complainant or accuser may bear in whole or in part the costs of trial if he acted in bad faith or as a result of gross negligence.
Article 189 (Withdrawal of Appeal by Public Prosecutor and Costs of
Trial)
In cases where only a public prosecutor has taken an appeal or requested a retrial, and the appeal taken or retrial requested has dismissed or withdrawn, the costs connected with the appeal or retrial shall not be borne by the defendant.
Article 190 (Costs of Trial by Third Party)
(1) If an appeal or retrial instituted by a person other than a public prosecutor is dismissed or withdrawn, the costs connected
with the ap- peal or retrial may be borne by such person.
(2) The provisions of the preceding paragraph shall apply to an appeal
- 49 -
or a retrial lodged by the defendant if it is withdrawn by a person other
than the defendant.
Article 191 (Decision on Costs of Trials)
(1) When the costs of trial are to be borne by the defendant in cases where the proceedings are terminated by decision, the decision
relating to such costs shall be rendered ex officio.
(2) Against such decision as referred to in the preceding paragraph, an objection may be raised only when an appeal is made against
merits in
the decision.
Article 192 (Decision on Costs of Trial by Third Party)
(1) When the costs of trial are to be borne by a person other than the defendant in cases where the proceedings are terminated by
decision, a ruling for the purpose shall be rendered ex officio.
(2) Against such ruling as referred to in the preceding paragraph, an immediate appeal may be made.
Article 193 (Completion of Procedures Not by Trial)
(1) When the costs of trial are to be borne in cases where the proceed- ings are terminated otherwise than by decision, a ruling on
costs shall be rendered exofficio by the court in which the case was last pending.
(2) Against such ruling as referred to in the preceding paragraph, an immediate appeal may be made.
Article 194 (Amounts of Trial)
If the decision ordering the cost of trial to be borne, does not fix the amount of such, the same shall be fixed by the public prosecutor respon- sible for the execution of the order.
Article 194-2 (Judgment of Acquittal and Compensation for Expenses) (1) If a judgment of acquittal is finally affirmed, the State shall be lia- ble for the expenses incurred to the person who was a defendant in the relevant case for defending his case on trial.
(2) In any of the following cases, the liability for the expenses under paragraph (1) may be discharged completely or partially:
1. In cases where it is found that the a person who was the defendant
deemed as been prosecuted made a false confession or fabricated an evidence for guilt with an intention to mislead the investigation
or
trial;
2. In cases where a judgment of acquittal is finally affirmed for one part
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of crimes in the trial, but a judgment of guilt is finally affirmed for
the other part of crimes at the same time;
3. In cases where a judgment of acquittal is finally affirmed on any of the grounds under Article 9 or 10 (1) of the Criminal
Act; and
4. In cases where such expenses have been incurred due to a cause for which the person who was a defendant shall be culpable.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 194-3 (Procedure for Compensation for Expenses)
(1) The compensation for expenses under Article 194-2 (1) shall be, upon receiving a request from the person who was a defendant,
decided by a collegiate division of the court that made the judgment of acquit- tal.
(2) The request under paragraph (1) shall be filed within six months from the date on which the judgment of acquittal is finally
affirmed.
(3) An immediate appeal may be filed against a decision under para- graph (1).
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 194-4 (Scope of Compensable Expenses)
(1) The expenses compensable under Article 194-2 shall be limited to the expenses incurred to the person who was a defendant
or his defense counsel, such as travel expense, daily allowance and accommodations, in preparing for and attending trials, and the
remuneration for the person who was a defense counsel. In this case, the Costs of Criminal Procedure
Act shall apply mutatismutandis to the compensable amount, but the
provisions thereof concerning witnesses shall apply mutatismutandis to
defendants, while the provisions thereof concerning the State-appointed
defense counsel shall apply mutatis mutandis to defense counsel.
(2) If there are two or more defense counsels involved in preparing for
or attending trials, the court may limit the travel expense, daily allowance and accommodations for defense counsel to the expenses
incurred to the representative defense counsel or some of other defense counsels, con- sidering the nature of the case, the status
of proceedings, and other cir- cumstances.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 194-5 (Provisions Applicable Mutatis Mutandis)
The claim of compensation for expenses, the procedure for compensation for expenses, the correlation between compensation for expenses here-
- 51 -
under and compensation for damages under other Acts, the assignment,
and seizure of a right to compensation, or the compensation for expenses payable to the heir to the person who was a defendant
shall be made
in accordance with the practices of compensation under the Criminal
Compensation Act, except as provided otherwise in this Act.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
PART Ⅱ COURT OF FIRST INSTANCE CHAPTER Ⅰ INVESTIGATION
Article 195 (Investigation by Public Prosecutor)
A public prosecutor shall, where there is a suspicion that an offense has been committed, investigate the offender, the facts of
the offense, and
the evidence.
Article 196 (Judicial Police Officers)
(1) Investigators, police administrative officials, police superinten- dents, police captains or police lieutenants shall
investigate crimes as
judicial police officers under instructions of a public prosecutor.
(2) Police sergeants or patrolmen shall assist in the investigation of crimes as judicial police assistants under the
instructions of a public
prosecutor or judicial police officer.
(3) Judicial police officials other than the persons prescribed in the pre- ceding two paragraphs may be appointed by Acts.
Article 197 (Special Judicial Police Official)
The qualification and scope of function of judicial police officials in re- gard to forestry, marine affairs, monopolies, taxes, military investigation institution and other special matters shall be provided in Acts.
Article 198 (Matters to be Observed)
(1) In principle, an investigation into a suspect shall be conducted with- out putting him under detention.
(2) Each public prosecutor, judicial police official, and other person whose duties are involved in investigation shall respect the
human rights of each
suspect or any other person, keep the secret known to him in the course of investigation, and shall refrain from hindering the
investigation.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 198-2 (Inspection of Arrest or Detention Place by Public Pros-
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ecutors)
(1) The chief public prosecutor of the district public prosecutor s office or the chief of the branch office shall have a public prosecutor inspect the place where a suspect is arrested or detained in the investigation agencies under the control of such office once or more every month in order to investigate, whether illegal arrest or detention has been made or not. The inspecting public prosecutor shall examine and question the detained or the arrested, and shall examine the documents concerned.
<Amended by Act No. 5054, Dec. 29, 1995>
(2) The public prosecutor shall, if there is a valid reason which makes him suspicious that the prisoner has been arrested or detained not through due process of law, release the arrested or the detained immediately or order transmission of such case immediately to the public prosecutor s office. <Amended by Act No. 5054, Dec. 29, 1995>
[This Article Newly Inserted by Act No. 705, Sep. 1, 1961]
Article 199 (Investigation and Necessary Examination)
(1) Necessary examinations may be made in order to achieve the pur- pose of an investigation: Provided, That compulsory measures shall be taken only where otherwise provided in this Act to the least extent
necessary. <Amended by Act No. 5054, Dec. 29, 1995>
(2) A public office, or public or private organization may be required to make a report on necessary matters regarding an investigation.
Article 200 (Request for Appearance of Suspect)
Any public prosecutor or judicial police officer may, whenever necessary for investigation, demand a suspect to make an appearance to hear his statements.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 200-2 (Arrest with Warrant)
(1) In cases where there is a good reason to suspect that a suspect has committed crimes, and he refuses or is likely to refuse
the request of
appearance under Article 200 without due cause, a public prosecutor may arrest the suspect with a warrant of arrest issued by a
judge of the competent district court upon request of the public prosecutor, and a jud-
icial police officer may arrest the suspect with a warrant of arrest issued by a judge of the competent district court upon request
of the public prosecutor who is requested for the warrant by the judicial police officers:
- 53 -
Provided,That with regard to cases punishable with a fine not exceeding
500,000 won, disciplinary lockup, or minor fine, such arrest shall be
effected only in cases where the suspect has no fixed dwelling or refuses the request of appearance under Article 200 without
due cause.
(2) In cases where a judge of a district court, who receives the request under paragraph (1), deems that the request has a good reason,
he shall
issue a warrant of arrest: Provided, That this shall not apply in cases
where it deems not obviously necessary to arrest the suspect.
(3) When a judge of the district court who receives the request under paragraph (1) does not issue the warrant of arrest,
he shall state the
gist and reasons therefor in the request, sign and seal the request, and
return the request to the public prosecutor who has made the request. (4) In cases where a public prosecutor makes the request
under para-
graph (1), if he has before requested or received a warrant of arrest on
the same criminal facts, he shall enter the gist and reasons for the sec- ond request for the warrant of arrest.
(5) In cases where an arrested suspect is to be detained, a warrant of
detention as prescribed in Article 201 shall be requested, and if such re- quest for the warrant of detention is not made within 48
hours from the
time of arrest, the suspect shall be released.
[This Article Newly Inserted by Act No. 5054, Dec. 29, 1995]
Article 200-3 (Emergency Arrest)
(1) In cases where there are good reasons to suspect that any suspect commits crimes punishable with death penalty, imprisonment
for life or
imprisonment or imprisonment without prison labor for a maximum pe- riod of three years or more, and he falls under any of the following
sub-
paragraphs, a public prosecutor or judicial police officer may, if it is not
possible to obtain a warrant of arrest of a judge of the district court because of urgencies, arrest the suspect without the
warrant, upon state-
ment of reasons therefor. The urgencies means the cases where issue of
warrant of arrest is pressed for time, such as the suspect is found by chance, etc.: <Amended by Act No. 8496, Jun. 1, 2007>
1. If the suspect is likely to destroy evidence; and
2. If the suspect escaped or is likely to escape.
(2) In cases where a judicial police officer has arrested suspects as re- ferred to in paragraph (1), he shall obtain approval of
a public prosecutor
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immediately.
(3) In case of an emergency arrest under paragraph (1), a public pros- ecutor or judicial police officer shall prepare an affidavit
of emergency
arrest immediately.
(4) The gist of charge and the grounds of emergency arrest, etc. shall be stated in the affidavit of emergency arrest under
paragraph (3).
[This Article Newly Inserted by Act No. 5054, Dec. 29, 1995]
Article 200-4 (Emergency Arrest and Term of Request for Warrant)
(1) When a public prosecutor or judicial police officer has arrested a sus- pect as prescribed in Article 200-3 and intends to detain
him, the public
prosecutor shall request a warrant of detention to a judge of the com- petent district court without delay, and the judicial
police officer shall
request a warrant of detention issued by a judge of the competent dis-
trict court upon request by a public prosecutor who is requested for the warrant by the judicial police officers. In this case, a
request for the war-
rant of detention shall be made within 48 hours from the time when the
suspect is arrested, and shall be accompanied by the affidavit of emer- gency arrest under Article 200-3 (3). <AmendedbyActNo.8496,Jun.1,2007>
(2) When a warrant of detention is not requested or issued as prescribed
in paragraph (1), a suspect shall be released immediately.
(3) A person who is released as prescribed in paragraph (2) shall not be arrested on the same criminal facts without a warrant.
(4) A public prosecutor shall, when he released a suspect without re- questing a warrant of detention under paragraph (1),
notify the court
of the following matters in writing within thirty days from the date of
release. In such instance, a copy of the affidavit of emergency arrest shall be attached thereto: <Newly Inserted by Act No. 8496, Jun. 1, 2007>
1. Personal matters of the person who had been arrested in an emer-
gency case and was released thereafter;
2. Time and place of the emergency arrest and specific reasons for such emergency arrest;
3. Time and place of release and reasons for release; and
4. Names of the public prosecutor or judicial police officer who had ar- rested the suspect in an emergency case and released
him.
(5) A person who was released from emergency arrest, or his defense counsel, legal representative, spouse, lineal relative,
or sibling may in-
- 55 -
spect or make copies of the notice and relevant documents. <NewlyInserted
by Act No. 8496, Jun. 1, 2007>
(6) A judicial police officer shall, when he released a suspect arrested in an emergency case without requesting a warrant of detention, report it to the public prosecutor immediately. <NewlyInsertedbyActNo.8496,Jun.
1, 2007>
[This Article Newly Inserted by Act No. 5054, Dec. 29, 1995]
Article 200-5 (Notice of Arrest and Suspected Crime)
Every public prosecutor or judicial police officer shall, whenever he ar- rests a suspect, notify the suspect of the gist of the suspected crime, the reasons for arrest, and the right to appoint defense counsel, and shall also give an opportunity to vindicate himself.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 200-6 (Mutatis Mutandis Applicable Provisions)
The provisions of Articles 75, 81 (1) (main sentence) and (3), 82, 83,
85 (1), (3) and (4), 86, 87, 89 through 91, 93, 101 (4), and 102 (1) (proviso) shall apply to the cases where a public prosecutor
or judicial police officer arrests the suspects. In this case, detention is regarded as arrest , and warrant of detention
as warrant of arrest. <Amended by Act No. 8496, Jun. 1, 2007>
[This Article Newly Inserted by Act No. 5054, Dec. 29, 1995]
Article 201 (Detention)
(1) In cases where there is a good reason to suspect that a suspect has committed crimes and if he falls under any of subparagraphs
of Article
70 (1), a public prosecutor may detain the suspect for detention with a warrant of detention issued by a judge of the competent
district court upon request of the public prosecutor, and the judicial police officers may arrest the suspect with a warrant of
detention issued by a judge of the competent judge upon request by a public prosecutor who is requested
for the warrant by the judicial police officers: Provided, That with re-
gard to offenses punishable with a fine not exceeding 500,000 won, dis-
ciplinary lockup, or minor fine, such arrest shall be effected only in cases where the suspect has no fixed dwelling.
(2) When a warrant of detention is requested, data justifying the nec- essity of the detention shall be submitted. <Amended by Act No. 3282, Dec.
18, 1980>
(3) The judge of the district court who is requested as prescribed in
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paragraph (1) shall make a decision immediately as to whether a warrant
of detention will be issued. <Newly Inserted by Act No. 5054, Dec. 29, 1995>
(4) In cases where a judge of the district court, who receives the request under paragraph (1), deems that the request has a good
reason, he shall issue a warrant of detention. When the judge does not issue the war-
rant, he shall state the gist and reasons therefor in the request, sign
and seal the request, and return the request to the public prosecutor who has made the request. <Amended by Act No. 3282, Dec. 18, 1980>
(5) In cases where a public prosecutor makes the request under para-
graph (1), if he has before requested or received a warrant of detention on the same crime of the same suspect, he shall enter the
gist and rea-
sons for the second request for the warrant of detention. <AmendedbyAct
No. 3282, Dec. 18, 1980>
[This Article Wholly Amended by Act No. 2450, Jan. 25, 1973]
Article 201-2 (Request for Warrant of Detention and Examination of
Suspect)
(1) A judge shall, upon receiving a request for a warrant of detention of a suspect arrested under Article 200-2, 200-3, or
212, hold a hearing to examine the suspect without delay. In this case, such hearing shall
be held by the day following the date on which the warrant of detention
is requested, unless there is any extraordinary reason otherwise.
(2) The judge shall, upon receiving a request for a warrant of detention of any suspect other than those under paragraph (1),
issue a warrant
of detention for compulsory appearance, if there is a probable cause to believe that the suspect committed the crime, and examine
the suspect
upon his compulsory appearance: Provided, That the foregoing shall not
apply in cases where the suspect escaped or it is not possible to examine the suspect because of any other reason.
(3) The judge shall notify the public prosecutor, the suspect, and his
defense counsel of the time and place of the hearing for examination, im- mediately in the case of paragraph (1) or immediately after
taking the
suspect into custody in the case of paragraph (2). In this case, the public
prosecutor shall bring the suspect to make an appearance on the date of hearing for examination, if the suspect is under
arrest.
(4) The public prosecutor and the defense counsel may appear before
- 57 -
the court on the date of hearing for examination under paragraph (3) to
make a statement.
(5) The judge shall, when he conducts the examination under para- graph (1) or (2), take measures such as separate examination
of ac- complices and other measures necessary for protection of secret in in-
vestigation.
(6) The court official in charge shall, when a suspect is examined pur- suant to paragraph (1) or (2), prepare the minutes of hearing
to describe
the outlines of examination.
(7) When a suspect is examined, the period of time beginning on the date on which a request for warrant of detention along
with documents
relating to investigation and evidential materials is filed with the court
and ending on the date on which such documents and materials are re- turned after issuing the warrant of detention shall not
be included in
the detention period for the purpose of applying Articles 202 and 203.
(8) If a suspect subject to examination has no defense counsel, the judge of the district court shall exofficio appoint a defense counsel. In
such instance, the appointment of the counsel shall remain effective until the trial in district court, unless the request
for warrant of deten- tion of the suspect is denied and becomes invalid.
(9) If there is no defense counsel because the appointment of a counsel
is cancelled due to the appointed counsel s circumstances or any other reason, the court may ex officio appoint another defense counsel.
(10) Articles 71, 71-2, 75, 81 through 83, 85 (1), (3), and (4), 86,
87 (1), 89 through 91, and 200-5 shall apply mutatismutandis to com-
pulsory appearance under paragraph (2), while Articles 48, 51, 53, 56-
2, and 276-2 shall apply mutatismutandisto examination of a suspect.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 202 (Detention Period by Judicial Police Officer)
In cases where a judicial police officer detains a suspect, the suspect shall be released if he is not transferred to the public
prosecutor within
ten days.
Article 203 (Detention Period by Public Prosecutor)
If a public prosecutor detains a suspect or receives a suspect from a judicial police officer, the suspect shall be released if a public prosecu- tion is not instituted within ten days.
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Article 203-2 (Inclusion of Detention Period)
In cases where a suspect is arrested or detained as prescribed in Article
200-2, 200-3, 201-2 (2) or 212, the detention period under Article 202 or 203 shall be counted from the date of arrest or detention
of the sus-
pect. <Amended by Act No. 5435, Dec. 13, 1997; Act No. 8496, Jun. 1, 2007>
[This Article Newly Inserted by Act No. 5054, Dec. 29, 1995]
Article 204 (Issue of Warrant of Arrest or Detention and Notification to Court)
When a suspect is not arrested or detained, or an arrested or detained
suspect is released after a warrant of arrest or of detention has been issued, a public prosecutor shall inform the issuing
court in writing as
to the reason therefor without delay. <AmendedbyActNo.5054,Dec.29,1995>
Article 205 (Extension of Detention Period)
(1) A judge of a district court may, where it is deemed that there is a good reason to continue the investigation, extend the period
prescribed
in Article 203, upon request of a public prosecutor, and only one such extension shall be granted to the extent not exceeding
ten days.
(2) In the case of the request mentioned in the preceding paragraph,
the grounds necessary for such extension shall be stated.
Articles 206 and 207 Deleted. <by Act No. 5054, Dec. 29, 1995>
Article 208 (Restrictions on Re-detention)
(1) Any person who is detained but later released by a public prosecu- tor or a judicial police officer shall not be again arrested
in connection with the same crime unless other important evidence is found.
(2) In the case of the preceding paragraph, acts which are done simul-
taneously or in the relation of means and results for one purpose shall be regarded as one and same criminal act.
[This Article Wholly Amended by Act No. 2450, Jan. 25, 1973]
Article 209 (Provisions Applicable Mutatis Mutandis)
The provisions of Articles 70 (2), 71, 75, 81 (1) (main sentence), 81 (3),
82, 83, 85 through 87, 89 through 91, 93, 101 (1), 102 (2) (main sentence) (excluding the part concerning the revocation of
release on bail), and
200-5 shall apply mutatismutandis to detention of a suspect by a pub-
lic prosecutor or a judicial police officer. <Amended by Act No. 8730, Dec. 21,
2007>
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 210 (Investigation by Judicial Police Officials outside Jurisdic-
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tion)
When a judicial police official investigates an offense outside his juris- diction, or investigates upon request of a judicial police official of another jurisdiction, he shall report thereon to the chief public prosecutor of the district public prosecutor s office or branch office of his jurisdiction: Provided, That in cases where any investigation is being conducted pur- suant to the provisions of Articles 200-3, 212, 214, 216 and 217 and it is urgent, post factum report may be made. <Amended by Act No. 705, Sep.
1, 1961; Act No. 5054, Dec. 29, 1995>
Article 211 (Flagrant Offender and Quasi-Flagrant Offender)
(1) A person who is in the act of committing a crime or has just com- mitted it shall be called a flagrant offender.
(2) A person who falls under any of the following subparagraphs shall be regarded as a flagrant offender:
1. An offender who is pursued by hue and cry;
2. Where a person carries stolen goods, or a weapon or other things recognized as being used in connection with a crime;
3. Where there is apparent evidence on the body or clothes of a suspect;
and
4. In cases where a person attempts to flee when challenged.
Article 212 (Arrest of Flagrant Offender)
Any person may arrest a flagrant offender without a warrant.
Article 212-2 Deleted. <by Act No. 3955, Nov. 28, 1987>
Article 213 (Delivery of Arrested Flagrant Offender)
(1) In cases where a person other than a public prosecutor or judicial police official arrests a flagrant offender, he shall immediately
turn over
the offender to a public prosecutor or judicial police official.
(2) In cases where a judicial police official has taken delivery of a fla- grant offender, he shall ask the name, address of the arrester,
and the
reason for the arrest, and when necessary he may request the arrester to accompany him to the police station.
(3) Deleted. <by Act No. 3955, Nov. 28, 1987>
Article 213-2 (Provisions Applicable Mutatis Mutandis)
The provisions of Articles 87, 89, 90, 200-2 (5), and 200-5 shall apply mutatismutandis to the cases where public prosecutors or judicial po- lice officials arrest flagrant offenders or take delivery of flagrant of-
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fenders. <Amended by Act No. 5054, Dec. 29, 1995; Act No. 8496, Jun. 1, 2007>
[This Article Newly Inserted by Act No. 3955, Nov. 28, 1987]
Article 214 (Minor Cases and Arrest of Flagrant Offenders)
The provisions of Articles 212 through 213 shall apply to the flagrant offenders punishable with fine not exceeding 500,000 won for the maxi- mum amount, disciplinary lockup, or minor fine only where their dwell- ing is uncertain. <Amended by Act No. 2450, Jan. 25, 1973; Act No. 3282, Dec. 18,
1980; Act No. 5054, Dec. 29, 1995>
Article 214-2 (Review of Legality of Arrest and Detention)
(1) A suspect who is arrested or detained, his defense counsel, legal representative, spouse, lineal relative, sibling, family member, cohab- itant, or employer may submit a petition to the competent court to ex- amine the legality of the arrest and detention. <Amended by Act No. 3955,
Nov. 28, 1987; Act No. 5054, Dec. 29, 1995; Act No. 7427, Mar. 31, 2005; Act No. 8496, Jun. 1, 2007>
≪This paragraph is supplemented and arranged by paragraphs (4) and
(5) amended by Act No. 7225 on October 16, 2004, following the de-
cision of incompatibility with the Constitution which was made by the
Constitutional Court on March 25, 2004≫
(2) A public prosecutor or a judicial police officer who has arrested or
detained a suspect shall notify the arrested or detained suspect or a person designated by the suspect among the persons specified
in paragraph (1) that the suspect has a right to file a petition for reviewing the legality of the arrest or detention under paragraph
(1). <NewlyInserted byAct No.
8496, Jun. 1, 2007>
(3) If a petition filed under paragraph (1) falls under any of the follow- ing subparagraphs, the court may deny the petition by its ruling with- out necessarily holding a hearing for examination under paragraph (4):
<AmendedbyActNo.3955,Nov.28,1987;ActNo.5054,Dec.29,1995;ActNo.8496,Jun.
1, 2007>
1. Where the petition is filed by a person who has no right to petition or filed again for the same warrant of arrest or detention;
and
2. Where it is obvious that accomplices or co-suspects file petitions in succession with an intention to interfere with investigation.
(4) The court shall, upon receiving a petition under paragraph (1), ex- amine the suspect arrested or detained, relevant documents
and evi- dence within 48 hours from the time on which the petition is filed, and
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either deny the petition by ruling if there is no valid ground for the pe-
tition or order the release of the arrested or detained suspect by ruling if there is a valid ground for the petition. The foregoing
shall also apply in cases where a public prosecution is instituted against the suspect after the petition for review is filed.
<AmendedbyActNo.5054,Dec. 29, 1995; Act No. 7225, Oct. 16, 2004; Act No. 8496, Jun. 1, 2007>
(5) The court may order the release of the detained suspect (including
any suspect against whom a public prosecution is instituted after the pe-
tition for review is filed) as referred to in paragraph (4) by ruling under
the condition of payment of bail money to guarantee appearance of the suspect: Provided, That this provision shall not be applicable to cases
falling under any of the following subparagraphs: <Newly Inserted by Act No.
5054, Dec. 29, 1995; Act No. 7225, Oct. 16, 2004; Act No. 8496, Jun. 1, 2007>
1. Where there is a good reason to believe that the defendant is likely to destroy evidence of a crime; and
2. Where there is a good reason to believe that the defendant does harm to or is likely to do harm to the life, body or property
of a victim, a person who is deemed to know the facts necessary for the public trial of the case, or such person s relatives.
(6) In case of the ruling of release under paragraph (5), restriction to dwelling, duty to attend on the date and place
designated by the court or public prosecutor, or other proper conditions may be added.
<Newly Inserted by Act No. 5054, Dec. 29, 1995; Act No. 8496, Jun. 1, 2007>
(7) The provisions of Articles 99 and 100 shall apply mutatis mutan- dis to the case of release under the condition of payment of bail money
as prescribed in paragraph (5). <NewlyInserted by ActNo. 5054, Dec. 29, 1995;
Act No. 8496, Jun. 1, 2007>
(8) The ruling of the court made pursuant to paragraphs (3) and (4) is not subject to appeal. <Amended by Act No. 8496, Jun. 1, 2007>
(9) A public prosecutor, a defense counsel and a requester may appear
before the court and present their views on the date of the examination
under paragraph (4). <Amended by Act No. 8496, Jun. 1, 2007>
(10) When the arrested or detained suspect is not represented by a de-
fense counsel, the provisions of Article 33 shall be apply mutatis mu-
tandis. <Amended by Act No. 5054, Dec. 29, 1995>
(11) In holding a hearing under paragraph (4), the court shall examine
accomplices separately or take other measures appropriate for protect-
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ing the secret in investigation. <Amended by Act No. 8496, Jun. 1, 2007>
(12) The judge who has issued a warrant of arrest or detention may not
participate in the examination, investigation and ruling under para- graphs (4) through (6): Provided, That this shall not apply to the case
where there is no other judge who examines, investigates, or makes a ruling, except the judge who has issued a warrant of
arrest or detention.
<Amended by Act No. 5054, Dec. 29, 1995; Act No. 8496, Jun. 1, 2007>
(13) The period of time from the date on which the court receives in- vestigation-related documents and evidential materials to the
date on which such documents and materials are returned to the public pros- ecutor s office after making a ruling shall not be
included in the period of restriction for the purpose of applying Articles 200-2 (5) (including the case of mutatismutandisapplication in Article 213-2) and 200-4 (1), while the afore-mentioned period of time shall not be included in the period of detention
for the purpose of applying Articles 202, 203, and
205. <Amended by Act No. 8496, Jun. 1, 2007>
(14) Article 201-2 (6) shall apply mutatis mutandis to a hearing for
examination of a suspect under paragraph (4). <Newly Inserted by Act No.
8496, Jun. 1, 2007>
[This Article Newly Inserted by Act No. 3282, Dec. 18, 1980]
Article 214-3 (Restriction on Re-arrest and Re-detention)
(1) The suspect who has been released through the review of legality of
arrest or detention under the provisions of Article 214-2 (4) shall not
be re-arrested or re-detained for the same crime unless he flees or de-
stroys the evidence. <Amended by Act No. 5054, Dec. 29, 1995; Act No. 8496, Jun.
1, 2007>
(2) The suspect who has been released under the provisions of Article
214-2 (5) shall not be re-arrested or re-detained for the same crime un-
less he falls under any of the following subparagraphs: <NewlyInsertedby
Act No. 5054, Dec. 29, 1995; Act No. 8496, Jun. 1, 2007>
1. When he has fled;
2. When there is a good reason to believe that he is likely to flee or de-
stroy evidence;
3. When he does not appear without due cause upon the request for ap-
pearance; and
4. When he violates the restriction to domicile or other conditions des-
ignated by the court.
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[This Article Newly Inserted by Act No. 3282, Dec. 18, 1980]
Article 214-4 (Confiscation of Bail Money)
(1) In case of any of the following subparagraphs, the court may, exof-
ficio or upon request by public prosecutors, by a ruling, confiscate whole
or part of the bail money which has been paid under Article 214-2 (5):
<Amended by Act No. 8496, Jun. 1, 2007>
1. Where a person, who has been released under Article 214-2 (5), shall be re-detained for the reasons enumerated in
Article 214-3 (2); and
2. Where the court, after institution of public prosecution, re-detains the suspect who has been released under Article 214-2
(5) for the same crime.
(2) In cases where a person, who had been released under Article 214-
2 (5) and was summoned for enforcement after he was sentenced to a
final judgment for the same crime, does not appear without due cause or flees, the court shall, exofficioor upon request of a public prosecutor,
by a ruling, confiscate whole or part of the bail money. <Amended by Act
No. 8496, Jun. 1, 2007>
[This Article Newly Inserted by Act No. 5054, Dec. 29, 1995]
Article 215 (Seizure, Search and Inspection of Evidence)
(1) If necessary for investigation of crimes, public prosecutors may
seize, search or inspect evidence according to the warrant issued by a
judge of the competent district court upon request by the public prose-
cutors. <Amended by Act No. 3282, Dec. 18, 1980>
(2) If deemed necessary for the investigation of crimes, judicial police
officers may seize, search or inspect evidence according to the warrant
issued by a judge of the competent district court upon request by a pub-
lic prosecutor who is requested by the judicial police officers. <Amended
by Act No. 3282, Dec. 18, 1980>
[This Article Wholly Amended by Act No. 2450, Jan. 25, 1973]
Article 216 (Compulsory Disposition without Warrant)
(1) A public prosecutor or judicial police officer, where he arrests or de-
tains a suspect pursuant to the provisions of Article 200-2, 200-3, 201
or 212, if necessary, may take the following measures without a war-
rant: <Amended by Act No. 5054, Dec. 29, 1995>
1. To investigate a suspect in the dwelling of another person or the
house, building, airplane, vessel, or a vehicle guarded by other per-
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sons; and
2. To seize, search and inspect at the locus of the arrest.
(2) The provisions of subparagraph 2 of the preceding paragraph shall apply mutatis mutandis to cases in which a public prosecutor or judi-
cial police officer executes a warrant of arrest against the defendant. (3) If it is impossible to obtain a warrant issued
by a judge of the court because of urgency at the scene of an offense, seizure, search or inspec- tion of evidence may be conducted
without a warrant. In this case, a warrant shall be obtained after the act without delay. <Newly Inserted by
Act No. 705, Sep. 1, 1961>
Article 217 (Compulsory Disposition without Warrent)
(1) A public prosecutor or a judicial police officer may, if it is necessary to urgently seize an article owned, possessed, or kept
by a person ar- rested pursuant to Article 200-3, seize, search, or inspect such article without a warrant within 24 hours from
the time of arrest.
(2) A public prosecutor or a judicial police officer shall, if it is neces- sary to keep in custody continuously an article
seized pursuant to para- graph (1) above or Article 216 (1) 2, make a request for a warrant of seizure and search without delay.
In this case, such request for a war- rant of seizure and search shall be filed within 48 hours from the time of arrest.
(3) A public prosecutor or a judicial police officer shall, if he fails to have a warrant of seizure and search issued as requested
pursuant to para- graph (2), return the seized article immediately.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 218 (Seizure without Warrant)
A public prosecutor or judicial police officer may seize an article which has been discarded by a suspect or any other person,
or those which
have been voluntarily produced by their owner, possessor, or custodian without a warrant.
Article 219 (Mutatis Mutandis Applicable Provisions)
The provisions of Articles 106, 107, 109 through 112, 114, 115 (1) (main sentence) and (2), 118 through 135, 140, 141, 333 (2) and 486 shall apply mutatismutandis to seizure, search or inspection of evidence by a public prosecutor or judicial police officer as prescribed in the pro- visions of this Chapter: Provided, That the judicial police officer shall
- 65 -
obtain instructions from a public prosecutor prior to making disposi-
tions under Articles 130 and 132 through 134. <Amended by Act No. 3282, Dec. 18, 1980; Act No. 8496, Jun. 1, 2007>
Article 220 (Urgent Disposition)
Dispositions in accordance with the provisions of Article 216 shall not be subject to the provisions of Article 123 (2) or 125, in the event of urgency.
Article 221 (Request for Appearance of Third Party)
(1) A public prosecutor or a judicial police officer may, if necessary for investigation, request any person other than a suspect
to make an ap-
pearance in order to hear a statement of facts from the person. In this
instance, such statement may be recorded by a video recording system, subject to the consent of the person.
(2) A public prosecutor or a judicial police officer may, if necessary for
investigation, commission a person to provide authentication, interpre- tation, or translation service.
(3) Article 163-2 (1) through (3) shall apply mutatis mutandis to in-
vestigation of victims of a crime by a prosecutor or a judicial police
officer.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 221-2 (Request for Interrogation of Witness)
(1) In cases where persons who are deemed likely to know facts that are indispensable for the investigation of crimes refuse
to appear or make
statements under the preceding Article, public prosecutors may request
judges to interrogate them as witnesses only before the date of the first public trial day.
(2) Deleted. <by Act No. 8496, Jun. 1, 2007>
≪This paragraph is deleted by Act No. 8496 on June 1, 2007, following the decision of unconstitutionality which was made by
the Constitu-
tional Court on December 26, 1996≫
(3) A request under paragraph (1) shall be made in writing with justi-
fiable reasons therefor clearly stated. <AmendedbyActNo.8496,Jun.1,2007> (4) The judges to whom the request under paragraph (1) is submitted shall have the same authority as that of the competent court
or presid-
ing judge concerning the interrogation of witnesses. <Amended by Act No.
8496, Jun. 1, 2007>
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(5) The judge shall, when he set a date for examination of witness upon
receiving a request under paragraph (1), notify the defendant, suspect, or defense counsel of the date to ensure that they can participate
in the examination of witness. <Amended by Act No. 8496, Jun. 1, 2007>
(6) When judges have conducted the interrogation of witnesses based on the request under paragraph (1), they shall without
delay send the related documents to the public prosecutor concerned. <AmendedbyActNo.
8496, Jun. 1, 2007>
[This Article Newly Inserted by Act No. 2450, Jan. 25, 1973]
Article 221-3 (Commission of Expert Opinion and Request for Confine- ment for Expert Opinion)
(1) In cases where an expert opinion is commissioned pursuant to Article
221, if confinement for expert opinion under Article 172 (3) is required, a public prosecutor shall file a request therefor
to a judge. <Amended by Act No. 3282, Dec. 18, 1980>
(2) When a judge deems a request under paragraph (1) appropriate, they shall effect the confinement for expert opinion.
The provisions of
Articles 172 and 172-2 shall apply mutatismutandisto the cases above.
[This Article Newly Inserted by Act No. 2450, Jan. 25, 1973]
Article 221-4 (Permit of Disposition Necessary for Expert Opinion)
(1) Persons who are commissioned to give an expert opinion pursuant to Article 221 may, with the permission of a judge, conduct
the disposi- tions under Article 173 (1).
(2) The request for the permission under paragraph (1) shall be made by public prosecutors. <Amended by Act No. 3282, Dec. 18, 1980>
(3) If the request under paragraph (2) is deemed appropriate, a judge shall issue a permit. <Amended by Act No. 3282, Dec. 18, 1980>
(4) The provisions of Article 173 (2), (3) and (5) shall apply mutatis
mutandis to the permits referred to in paragraph (3).
[This Article Newly Inserted by Act No. 2450, Jan. 25, 1973]
Article 222 (Inquest of Unnaturally Deceased Persons)
(1) With regard to the body of a person who has died an unnatural death or is suspected of having died an unnatural death, a public prosecutor of a district public prosecutor s office which has jurisdiction over the place where it has been discovered shall conduct an inquest on the body. (2) Where it is deemed that there is a suspicion of a crime due to an
- 67 -
inquest referred to in the preceding paragraph, and it is urgent, such
inspection may be conducted without a warrant. <NewlyInsertedbyActNo.
705, Sep. 1, 1961>
(3) The public prosecutor may order the judicial police officer to take dispositions mentioned in the preceding two paragraphs. <Newly Inserted
by Act No. 705, Sep. 1, 1961>
Article 223 (Right of Complaint)
A victim of a crime may file a complaint.
Article 224 (Limitation of Complaint)
A complaint shall not be lodged against a lineal ascendant of the prin- cipal himself or of his spouse.
Article 225 (Complainants who are Not Victims)
(1) A legal representative of a victim may file a complaint independently. (2) On the death of the victim, his spouse or any of his
lineal relatives or brother or sister may file a complaint: Provided, That he shall not
file a complaint against the express intention of the injured party.
Article 226 (Idem)
In cases where the legal representative of a victim or a relative of the said legal representative is the suspect, a relative of the victim may file a complaint independently.
Article 227 (Idem)
In respect to an offense defaming the deceased, his relative or descen- dant may file a complaint.
Article 228 (Designation of Complainant)
In cases where there is no person to file a complaint in respect to an offense subject to prosecution on complaint, if there is a
request of any
person interested, a public prosecutor shall designate a person who can
file a complaint within ten days.
Article 229 (Complaint by Spouse)
(1) Complaint mentioned in Article 241 of the Criminal Act shall not be made unless the marriage is void or divorce action is instituted.
<Amended by Act No. 8496, Jun. 1, 2007>
(2) In the case of the preceding paragraph, the complaint shall be considered withdrawn if the complainant and the defendant are married again or the divorce action is withdrawn.
Article 230 (Period of Complaint)
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(1) As for the offenses subject to prosecution on complaint, no complaint
shall be made after the lapse of six months from the date on which the identity of the offender becomes known: Provided, That when there are
unavoidable reasons preventing the filing of a complaint, the period shall be computed from the date on which such reasons have ceased
to exist.
(2) In cases where a person who was kidnapped or enticed in accordance with Article 291 of the Criminal Act has married the abductor,
the pe- riod of complaint mentioned in the preceding paragraph shall begin to
run from the day when a court decision of voidance or revocation of mar- riage is finally binding. <Amended by Act No. 8496, Jun. 1, 2007>
Article 231 (Several Complainants)
If there are two or more persons entitled to file a complaint, failure by one of them to observe the term for complaint shall not
operate against
other s complaint.
Article 232 (Revocation of Complaint)
(1) A complaint may be withdrawn before the pronouncement of judg- ment in the first instance.
(2) A person who has withdrawn a complaint shall not file a complaint again.
(3) The provisions of the preceding two paragraphs shall apply mutatis
mutandis to cases in which an expression of intent for punishment is
withdrawn in a case which cannot be prosecuted against the clearly ex-
pressed intention of the victim.
Article 233 (Indivisibility of Complaint)
Complaints filed against one or more of the co-offenders in an offense subject to prosecution on complaint, or revocation thereof,
shall also take
effect in respect to the other accomplices.
Article 234 (Accusation)
(1) Any person who believes that an offense has been committed may lodge an accusation.
(2) When a public official in the course of his duty believes that an of- fense has been committed, he shall lodge an accusation.
Article 235 (Limitation of Accusation)
The provisions of Article 224 shall apply mutatis mutandis to the ac-
cusation.
Article 236 (Accusation by Proxy)
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A complaint may be lodged or withdrawn by proxy.
Article 237 (Methods of Complaint or Accusation)
(1) A complaint and accusation shall be filed with a public prosecutor
or judicial police officer in writing or orally.
(2) On receipt of an oral complaint or accusation, a public prosecutor
or a judicial police officer shall draw up a protocol.
Article 238 (Complaint or Accusation and Measures taken by Judicial
Police Officer)
When a judicial police officer receives a complaint or accusation, he
shall investigate the relevant document and evidence matter pertain-
ing thereto promptly and transfer them to a public prosecutor.
Article 239 (Applicable Mutatis Mutandis Provisions)
The provisions of the preceding two Articles shall apply mutatis mu- tandis to the withdrawal of a complaint or accusation.
Article 240 (Self-Denunciation and Applicable Mutatis Mutandis Pro- visions)
The provisions of Articles 237 and 238 shall apply mutatismutandis to
a self-denunciation.
Article 241 (Interrogation of Suspect)
A public prosecutor or judicial police officer shall, before he interrogates
a suspect, confirm that the person is a true suspect by asking his name,
age, reference domicile, domicile, and occupation. <AmendedbyActNo.8435,
May 17, 2007>
Article 242 (Matters concerning Interrogation of Suspect)
A public prosecutor or judicial police officer shall interrogate the subject
as to the necessary matters concerning the facts and conditions of the
offense, and shall give the suspect an opportunity to state facts benefi-
cial to himself.
Article 243 (Interrogation of Suspect and Attendant)
When a public prosecutor interrogates a suspect, he shall have an ad-
ministrative officer, a clerk, or an investigator of the public prosecu-
tor s office present at the place, while a judicial police officer shall have
another judicial police official present at the place when he interrogates
a suspect. <Amended by Act No. 8496, Jun. 1, 2007; Act No. 8730, Dec. 21, 2007>
Article 243-2 (Defense Counsel s Participation)
(1) A public prosecutor or a judicial police officer shall, upon receiving an application from a suspect, his defense counsel, legal representative,
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spouse, lineal relative, or sibling, allow the defense counsel to have an
interview with the suspect, or shall allow the defense counsel to partici-
pate in the interrogation of the suspect, unless there is any justifiable
reason otherwise.
(2) If there are two or more defense counsel who desire to participate
in the interrogation, the suspect shall designate one counsel to participate
in the interrogation. If there is no counsel so designated, the public pros-
ecutor or judicial police officer may designate one.
(3) The defense counsel who participates in the interrogation may make a statement on his opinion after interrogation: Provided, That the coun-
sel may raise an objection regarding any unfair interrogation manner
even in the middle of the interrogation, and may also make a state-
ment, subject to an approval of the public prosecutor or the judicial
police officer.
(4) The defense counsel shall be allowed to inspect the protocol concern-
ing interrogation of suspect that contains the counsel s opinion under
paragraph (3), and then shall print his name and affix his seal or write
his signature thereon.
(5) The public prosecutor or the judicial police officer shall describe the
matters concerning the participation of the defense counsel in interro-
gation and the limitations thereon in the protocol of interrogation of
suspect.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 244 (Formation of Protocol concerning Interrogation of Sus- pect)
(1) The statement of a suspect shall be entered in the protocol.
(2) The protocol under paragraph (1) shall be made available to the
suspect for inspection or shall be read to him, the suspect shall be asked
whether or not there is any ommission or any fact mistakenly described,
and then any objection raised or any statement made by the suspect,
including a motion for addition, subtraction, or modification, shall be re-
corded additionally in the protocol. In this case, the part against which
the suspect raised an objection shall be kept readable. <Amended by Act
No. 8496, Jun. 1, 2007>
(3) If the suspect states that he has no objection or any other opinion concerning the protocol, the suspect shall be required to write such state- ment in his own hand, affix his seal between pages of the protocol, and
- 71 -
print his name and affix his seal or write his signature thereon. <Amended
by Act No. 8496, Jun. 1, 2007>
Article 244-2 (Video Recording of Suspect s Statements)
(1) The statements made by a suspect may be recorded by a video re- cording system. In this case, the suspect shall be informed of
video re- cording in advance, and the entire process from the beginning to the end of interrogation and the objective
circumstances shall be recorded by the video recording system.
(2) Once the video recording under paragraph (1) is finished, the original recording medium shall be sealed without delay in the presence
of the suspect or his defense counsel, and the suspect shall be required to print his name and affix his seal or write his
signature thereon.
(3) Upon a demand by the suspect or his defense counsel in the case of paragraph (2), the video-recorded product shall be replayed
for view- ing. In such instance, if there is any objection raised to its contents
thereof, the purport of such objection shall be put down in writing and
shall be attached to the product.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 244-3 (Announcement of Right to Refuse to Make Statements and Other Rights)
(1) A public prosecutor or a judicial police officer shall inform a suspect
of the following matters prior to interrogation;
1. The suspect has a right to remain silent or make no statement for each question;
2. Remaining silent cannot be used against the suspect;
3. A statement made by the suspect by waiving the right to refuse to make a statement can be used as evidence for being guilty
in the court; and
4. The suspect has a right to have the assistance of defense counsel,
including the counsel s participation in interrogation.
(2) The public prosecutor or judicial police officer who informed a sus- pect of the matters under paragraph (1) shall ask the suspect
whether
he will exercise the right to remain silent and the right to have the as- sistance of counsel, and shall write down the suspect s
answer thereof
on the protocol. In this case, the suspect shall be required to write
down his answer in his own hand, or if the public prosecutor or judicial
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police officer writes down the suspect s answer, then he shall require him
to print his name and affix his seal or write his signature on the part that describes his answer.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 244-4 (Recording of Investigation Process)
(1) The public prosecutor or judicial police officer shall record the time on which the suspect arrived at the interrogation place,
the time on which the interrogation began and ended, and other matters necessary for con- firming the developments of the interrogation
process on the protocol of interrogation of suspect, or make a record of such matters as a separate document and shall incorporate
the document into the protocol of in- terrogation.
(2) Article 244 (2) and (3) shall apply mutatismutandisto the protocol
or document under paragraph (1).
(3) Paragraphs (1) and (2) shall apply mutatismutandis to the inves-
tigation on the person other than the suspect.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 244-5 (Special Rule for Disabled and Persons who Need Special
Protection)
A public prosecutor or a judicial police officer may, if a suspect under interrogation falls under any of the following
subparagraphs, allow a
person who has a reliable relationship with the suspect to sit in com-
pany with the suspect, ex officio or upon receiving a petition from the
suspect or his legal representative:
1. If the suspect lacks the ability to discern right from wrong or make and communicate a decision due to a physical or mental disorder;
and
2. If it is necessary to facilitate psychological stability and smooth com- munications, considering the age, gender, nationality,
or any other aspect of the suspect.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 245 (Cross Examination)
A public prosecutor or judicial police officer may, if necessary to deter- mine the facts, cross examine each suspect or persons
other than the
suspect.
Article 245-2 (Participation of Professional Investigative Adviser)
(1) The public prosecutor may, if necessary to clarify facts in relation
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to determination on whether to prosecute a suspect, designate a profes-
sional investigative adviser, exofficio or upon a request of the suspect
or his defense counsel, to have the adviser participate in investigation and hear his advice.
(2) A professional investigative adviser may submit an explanation or his opinion based on his expertise in writing or make
an oral statement on such explanation or opinion based on his expertise.
(3) As regards the written statement submitted by a professional in-
vestigative adviser or such adviser s oral statement on explanation or opinion under paragraph (2), the public prosecutor shall
give the sus-
pect or his defense counsel to make a statement, oral or in writing, on
his opinion.
[This Article Newly Inserted by Act No. 8730, Dec. 21, 2007]
Article 245-3 (Designation of Professional Investigative Adviser)
(1) In cases where the public prosecutor intends to have a professional investigative adviser participate in investigation under Article
245-2 (1), he shall designate one or more professional investigative advisers for
each case.
(2) The public prosecutor may, if deemed proper, revoke the designation of a professional investigative adviser.
(3) A suspect or his defense counsel may file an objection against the
public prosecutor s designation of a professional investigative adviser with the Chief Public Prosecutor of the relevant High
Public Prosecu-
tor s Office.
(4) A professional investigative adviser shall be entitled to compensa- tion, and other expenses including travel expense, daily allowance,
and
accommodations, if necessary, may be paid to him.
(5) The procedures and methods for designation of a professional in- vestigative adviser, revocation thereof, and filing
of an objection, and
other necessary matters shall be prescribed by Ordinance of the Min-
istry of Justice.
[This Article Newly Inserted by Act No. 8730, Dec. 21, 2007]
Article 245-4 (Provisions Applicable Mutatis Mutandis)
Articles 279-7 and 279-8 shall apply mutatismutandis to professional
investigative advisers to a public prosector.
[This Article Newly Inserted by Act No. 8730, Dec. 21, 2007]
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CHAPTER Ⅱ PUBLIC PROSECUTION
Article 246 (Principle of Public Prosecution by State)
A public prosecution shall be instituted and executed by a public pros- ecutor.
Article 247 (Principle of Discretionary Indictment)
A public prosecutor may decide not to institute a public prosecution, considering the matters under Article 51 of the Criminal Act.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 248 (Effect of Public Prosecution)
(1) A public prosecution shall not be effective to any person other than a person designated by a public prosecutor as the defendant.
(2) A public prosecution instituted against a part of facts of a crime shall be effective to the crime as a whole.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 249 (Limitation Periods for Public Prosecution)
(1) The prescription for public prosecution shall expire after lapse of the following terms: <Amended by Act No. 2450, Jan. 25, 1973; Act No. 8730, Dec.
21, 2007>
1. Twenty-five years for crimes punishable with death penalty;
2. Fifteen years for crimes punishable with imprisonment without pri- son labor for life or imprisonment for life;
3. Ten years for crimes punishable with imprisonment or imprisonment
without prison labor for a maximum term of ten years or more;
4. Seven years for crimes punishable with imprisonment or imprison- ment without prison labor for a maximum term of less than
ten years;
5. Five years for crimes punishable with imprisonment or imprisonment without prison labor for a maximum term of less than five years,
or
suspension of qualifications for a maximum term of not less than ten
years, or a fine;
6. Three years for crimes punishable with suspension of qualifications for a maximum term of not less than five years; and
7. One year for crimes punishable with suspension of qualifications for a maximum term of less than five years or disciplinary
lockup, a
minor fine, or confiscation.
(2) The limitation periods for a crime for which a public prosecution has been instituted and in which no final judgment
has been rendered
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shall be twenty-five years from the date of the institution of such public
prosecution. <NewlyInsertedbyActNo.705,Sep.1,1961;ActNo.8730,Dec.21,2007>
Article 250 (Two or More Penalties and Period for Indictment)
In regard to crimes punishable by the joint imposition of two or more principal penalties or by the imposition of one from among two
or more
principal penalties, the provisions of the preceding Article shall apply with reference to the heaviest penalty.
Article 251 (Increase or Decrease of Penalty and Limitation Periods) When a penalty is to be increased or commuted in accordance with the Criminal Act, the provisions of Article 249 shall apply with reference to the penalty before increase or commutation. <Amended by Act No. 8496,
Jun. 1, 2007>
Article 252 (Commencement of Limitation Periods)
(1) A limitation period shall commence to run after the criminal act is completed.
(2) In regard to complicity, the limitation period against accomplices shall commence to run at the time when the criminal action
has ceased finally.
Article 253 (Suspension of Limitation Period and Its Effect)
(1) The limitation period shall cease to toll on the institution of the public prosecution, and begin to toll when a judgment dismissing
a public
prosecution or a judgment indicating a violation of jurisdiction becomes
finally binding.
(2) When a public prosecution is instituted against one of several ac- complices mentioned in the preceding paragraph, the tolling
of the limi- tation period shall be suspended as to the other accomplices, and shall
begin to toll again when a judgment on the case concerned becomes fi- nally binding. <Amended by Act No. 705, Sep. 1, 1961>
(3) The limitation period shall be suspended during the period, for which
an offender stays abroad for the purpose of escaping criminal punish- ment. <Newly Inserted by Act No. 5054, Dec. 29, 1995>
Article 254 (Method of Instituting Public Prosecution and Written In- dictment)
(1) The institution of public prosecution shall be made by filing a written
indictment with a competent court.
(2) Copies, equal to the number of defendants shall be annexed to the
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written indictment.
(3) The written indictment shall contain the following matters:
1. The names of the defendants and other matters by which the defen- dants can be identified;
2. The name of the crime;
3. The facts constituting the crime charged; and
4. The applicable provisions of Acts.
(4) The facts constituting the crime charged shall be stated clearly by specifying the time and date, place and method of
a crime.
(5) Several separate charges or several applicable provisions of Acts
may be stated in preliminarily or alternatively.
Article 255 (Withdrawal of Public Prosecution)
(1) A public prosecution may be withdrawn before a judgment in the first instance is rendered.
(2) A withdrawal of a public prosecution shall be made on a document
stating the reason: Provided, That as to withdrawal by the court, it may
be stated orally.
Article 256 (Commitment to Other Jurisdiction)
If a public prosecutor considers that the case does not come within the jurisdiction of the court corresponding to the public prosecutor
s office to which he belongs, he shall transfer the case, together with the docu-
ments and articles of evidence, to a public prosecutor of the public pros- ecutor s office corresponding to the competent court.
Article 256-2 (Transfer of Cases to Prosecutors of Military Court)
In cases where the case falls under the jurisdiction of the military court, public prosecutors shall transfer the case to the public
prosecutors of the
prosecution division of the competent military court with related docu- ments and evidence attached. In this case, the acts of litigation
done before the transfer shall not be affected after the transfer. <Amended by
Act No. 3955, Nov. 28, 1987>
[This Article Newly Inserted by Act No. 2450, Jan. 25, 1975]
Article 257 (Case upon Complaint)
In cases where a public prosecutor investigates a crime based on com- plaint or accusation, he shall determine whether public prosecution
shall
be instituted or not within three months after the complaint or accusa-
tion has been made.
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Article 258 (Disposition to Complainant)
(1) If, in a case in which a complaint or accusation has been lodged, the public prosecutor has decided to or not to institute
a public prose- cution, withdrawn public prosecution or sent the case to a public prose-
cutor of another public prosecutor s office mentioned in Article 256, the public prosecutor shall inform the complainant or accuser
in writing, of the gist therefor, within seven days after such disposition has been
made.
(2) In cases where a public prosecutor has decided not to institute a public prosecution or in case of a situation arising under Article
256, he shall
promptly inform the suspect of such decision.
Article 259 (Notice not to Institute Public Prosecution to Complainant) If, with respect to a case in which complaint, accusation or demand has been lodged, a disposition not to institute a public prosecution has been made, the public prosecutor shall, upon request of the complainant or accuser, promptly inform them of the reasons therefor in writing within seven days.
Article 259-2 (Notice to Victims)
A public prosecutor shall, promptly upon receiving an application from a victim of a crime or his legal representative (including
a victim s
spouse, lineal relative, and sibling, if the victim is dead), notify the ap- plicant of whether the indictment has been instituted
for the crime, the time and place of trial, the result of trial, and the facts about detention
such as whether the suspect or the defendant is detained or released.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 260 (Petition for Adjudication)
(1) A person who lodged a complaint with a right to such complaint (in- cluding those who filed an accusation against crimes under
Articles 123 through 125 of the Criminal Act; hereafter the same shall apply in this
Article) may, if he receives a notice of non-prosecution from the public prosecutor, file a petition for adjudication to find whether
such disposi- tion is properly made with the High Court having jurisdiction over the
venue where the district public prosecutor s office to which the public prosecutor belong is situated (hereinafter referred to as
the competent High Court ).
(2) The petition for adjudication under paragraph (1) shall be filed sub-
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sequent to an appeal under Article 10 of the Public Prosecutor s Office
Act: Provided, That the foregoing shall not apply in cases where any of
the following events occurs:
1. In cases where the case was investigated again after filing an appeal to the prosecution but it has been notified again that the
case would
not be prosecuted;
2. In cases where no disposition on an appeal to the prosecution has been made for three months since the appeal was filed;
and
3. In cases where the public prosecutor has not prosecuted the case until
thirty days before the end of prescriptive period of public prosecu- tion.
(3) A person who intends to file an petition for adjudication under para-
graph (1) shall file the application with the chief public prosecutor of the district public prosecutor s office or of
its branch office within ten
days from the date on which a decision to dismiss an appeal to the publi-
cation was notified or on which an event under any subparagraph of par- agraph (2) occurred: Provided, That a person may file a petition for ad-
judication by the day immediately before the end of prescriptive period of public prosecution in the case of paragraph (2) 3.
(4) A petition for adjudication shall describe the grounds which the pe- tition for adjudication can be justified, including the facts
and evidence
relevant to the crime alleged in the case for which the petition for adjudi- cation is filed.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 261 (Disposition by Chief Public Prosecutor of District Public
Prosecutor s Office or of Its Branch Office)
(1) The chief public prosecutor of the district public prosecutor s office or of its branch office shall, upon receiving a petition for adjudication under Article 260 (3), shall forward the petition for adjudication along with his opinion letter, documents relating to investigation, and evidential materials to the competent High Court through the competent High Pub- lic Prosecutor s Office within seven days from the date of filing the pe- tition: Provided, That if the petition falls under any subparagraph of Acticle 260 (2), the chief public prosecutor of the district public pro- secutor s office or of its branch office shall process the petition in one of the following manners as the case may be:
- 79 -
1. If it is deemed that the petition has a reasonable ground, the public
prosecution for the case shall be initiated immediately and notify the competent High Court and the petitioner for adjudication thereof;
and
2. If it is deemed that the application has no reasonable ground, the case shall be forwarded to the competent High Court
within thirty
days.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 262 (Examination and Ruling)
(1) The court shall, upon receiving a petition for adjudication, notify the suspect of the petition within ten days from the
date on which the
petition was forwarded.
(2) The court shall render one of the following rulings for a petition for adjudication, depending upon the case, in accordance
with the proce-
dure for appeal within three months from the date on which the petition was forwarded. In this case, the court may examine relevant
evidences,
if necessary:
1. The court shall deny the petition, if it is held that it does not con- form to the legal form or has no ground; and
2. The court shall render a ruling to institute public prosecution, if it
is held that the petition has a ground.
(3) The examination on a case of petition for adjudication shall be con- ducted behind closed doors, unless there is an extraordinary
reason
otherwise.
(4) No objection may be raised against the ruling under paragraph (2). A case for which a ruling under paragraph (2) 1 becomes final
and con-
clusive may not be subject to public prosecution, except where any other important evidence is discovered later.
(5) The court shall, upon rendering the ruling under paragraph (2), for-
ward each authentic copy of the ruling to the petitioner for adjudica- tion, the suspect, and the chief public prosecutor of
the relevant district
prosecutor s office or its branch office without delay. In such instance,
an authentic copy of the ruling under paragraph (2) 2 shall be forwarded together with the case record to the chief public prosecutor
of the rele-
vant district public prosecutor s office or of its branch office.
(6) The chief public prosecutor of the relevant district public prosecu- tor s office or of its branch office shall, upon
receiving a written deci-
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제12편 형사법 형사소송법
sion on adjudication under paragraph (2) 2, assign a public prosecutor
to take charge of the case and the assigned public prosecutor shall in- stitute the public prosecution accordingly.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 262-2 (Restriction on Inspection and Copying of Case Record of
Petition for Adjudication)
No one may be allowed to inspect or copy the documents and evidential materials relating to a case of petition for adjudication
while the case
is examined: Provided, That the court may permit a party to inspect or
copy all or part of documents prepared in the proceedings of examina-
tion of evidence under the latter sentence of Article 262 (2).
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 262-3 (Liability for Expenses)
(1) The court may, when it renders a ruling under Article 262 (2) 1 or the withdrawal under Article 264 (2) occurs, require the petitioner
for
adjudication to bear all or part of the expenses incurred in the proceed-
ings for the petition by its decision.
(2) The court may, exofficioor upon a motion of the suspect, order the
petitioner for adjudication to pay all or part of the expenses that the sus-
pect has paid or shall pay, including attorney fees for the application procedures for the adjudication.
(3) An immediate appeal may be filed against the ruling under para-
graphs (1) and (2).
(4) The scope of expenses payable under paragraphs (1) and (2) and the procedure for payment of such expenses shall be prescribed
by the
Supreme Court Regulations.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 262-4 (Interruption of Prescriptive Period for Public Prosecu- tion)
(1) Once a petition for adjudication under Article 260 is filed, the run-
ning of prescriptive period for public prosecution shall be interrupted
until the ruling on adjudication under Article 262 is rendered. <Amended by Act No. 8730, Dec. 21, 2007>
(2) Once the ruling under Article 262 (2) 2 is rendered, it shall be
deemed that the public prosecution is instituted on the date of such rul- ing in connection with the prescription of public prosecution.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
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Article 263 Deleted. <by Act No. 8496, Jun. 1, 2007>
Article 264 (Application by Proxy, Effect and Rescission of Application
Requested by One Person)
(1) Further application for the issuance of a complaint may be made by proxy and the application by one of joint applicants
shall take effect
for all the applicants.
(2) Further application for the issuance of a complaint may be with- drawn by the applicant prior to the rendering of the ruling
provided for
in Article 262 (2): Provided, That a person who has withdrawn such
application shall not apply again. <Amended by Act No. 8496, Jun. 1, 2007>
(3) The withdrawal mentioned in the preceding paragraph shall not
take effect for other joint applicants.
Article 264-2 (Restriction on Revocation of Public Prosecution)
A public prosecutor may not revoke the public prosecution instituted pursuant to a ruling under Article 262 (2) 2.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 265 Deleted. <by Act No. 8496, Jun. 1, 2007>
CHAPTER Ⅲ PUBLIC TRIAL
SECTION 1 Preparation of Public Trial and
Procedure of Public Trial
Article 266 (Service of Copy of Indictment)
When a public trial has been instituted, the court shall serve the defen- dant or his defense counsel with a copy of the indictment without delay:
Provided, That the service shall be made at least five days prior to the
date of the first public trial.
Article 266-2 (Submission of Opinion Letter)
(1) A defendant or his defense counsel shall submit an opinion letter that states whether he admits indicted facts and his opinion
on the proce-
dure for preparatory proceedings for trial to the court within seven days
from the date on which a copy of indictment is served: Provided, if the
defendant refuses to make any statement, an opinion letter that des- cribes such situation may be submitted.
(2) The court shall, upon receiving an opinion letter under paragraph (1),
forward it to the public prosecutor.
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제12편 형사법 형사소송법
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 266-3 (Inspection and Copying of Documents and Articles in
Custody of Public Prosecutor Subsequent to Indictment)
(1) A defendant or his defense counsel may file an application with the public prosecutor to ask the prosecutor to allow him to inspect
or copy, or deliver in writing, a list of the documents or articles relating to the case indicted (hereinafter referred to as documents
) and the following documents that are likely to have influence over admission of indicted facts or sentencing: Provided,That if the defendant employes his defense counsel, only the inspection shall be applied to the defendant:
1. Documents that the public prosecutor would produce as admissible evidence;
2. A paper that describes the names of persons whom the public pros-
ecutor plans to produce as witnesses and their involvement in the case or documents that contain statements made prior
to trial;
3. Documents relating to the weight of evidence of the paper or docu-
ments under subparagraph 1 or 2; and
4. Documents relating to arguments made by the defendant or his de- fense counsel on matters of law and fact (including the records
of re-
lated criminal trial for which adjudication is finally closed and the records of cases for which non-prosecution has
been disposed of).
(2) If it is deemed that there is a reasonable ground to disallow inspec-
tion, copying, or delivery in writing of documents, such as the national security, needs to protect witnesses, likelihood of
destruction of evi-
dence, and specific grounds under which it is anticipated that it is likely
to hinder the investigation into related cases, the public prosecutor may refuse to allow the inspection or copy, or deliver in writing,
such docu-
ments or place a limitation thereon.
(3) The public prosecutor shall, whenever he refuses to allow the inspec- tion or copy, or deliver in writing, or place a limitation
thereon, notify
of the reason in writing immediately.
(4) A defendant or his defense counsel may, when there is no notice given under paragraph (3) within 48 hours from the time
on which the
public prosecutor received an application under paragraph (1), file a mo-
tion under Article 266-4 (1).
(5) Notwithstanding paragraph (2), no public prosecutor shall refuse to
- 83 -
allow to inspect or copy a list of documents.
(6) The term documents in paragraph (1) includes extraordinary me-
dia other than written documents, including drawings, photographs, au-
dio tapes, video tapes, computer discs, and other goods made for the pur-
pose of storing information. In this case, copying of such extraordinary
media shall be limited to the minimum necessary information.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 266-4 (Court Ruling on Inspection or Copying)
(1) When a public prosecutor refuses to allow a defendant or his defense
counsel to inspect or copy, or deliver in writing, documents or places a
limitation thereon, the defendant or defense counsel may make a motion
to the court to allow him to inspect or copy such documents, or have
them delivered in writing.
(2) The court may, upon a motion under paragraph (1), order the pub-
lic prosecutor to allow a defendant or his defense counsel to inspect or
copy documents, or have them delivered in writing, considering the type
and degree of harm that may be caused by such allowance, the defen-
dant s needs for defending the case, the necessity for speedy trial, and
the importance of such documents. In such instance, the court may desig-
nate the time and method of inspection or copying or put a condition or
an obligation thereon.
(3) The court shall, when it renders a ruling under paragraph (2), give
the public prosecutor an opportunity to present his opinion.
(4) The court may, if deemed necessary, demand the public prosecutor
to produce the relevant documents, and may also examine the defendant
or any other interested party.
(5) If the public prosecutor does not comply with the court s ruling
concerning the inspection, copying, or delivery in writing under para-
graph (2) without delay, he shall not make a motion for admission of
relevant witnesses and documents as evidence.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 266-5 (Preparatory Proceedings Prior to Trial)
(1) The presiding judge may put a case to preparatory proceedings for
efficient and concentrative examination.
(2) The court may require the parties to prepare their arguments, a plan
for proving, and other matters in writing or hold a preparatory hearing
for trial preparation.
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(3) The public prosecutor and the defendant or his defense counsel shall
collect and organize evidences in good order in advance and shall coop- erate each other so that the preparatory proceedings prior
to trial can
be progressed smoothly.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 266-6 (Submission of Written Statements for Trial Preparation) (1) The public prosecutor and the defendant or his defense counsel may submit to the court written statements that describe the outlines of their arguments on matters of law and fact, the purport of evidence, and other matters.
(2) The presiding judge may order the public prosecutor and the defen- dant or his defense counsel to submit a written statement under
para- graph (1).
(3) The court shall, when written statements are submitted under par- agraph (1) or (2), serve the copies thereof upon the
other party.
(4) The presiding judge may demand the public prosecutor and the de-
fendant or his defense counsel to explain a written statement submitted to the court, including a written indictment or may issue
any other order
as may be necessary for trial preparation.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 266-7 (Preparatory Hearing Date)
(1) The court may set a preparatory hearing date, considering the opin- ions of the public prosecutor and the defendant or his defense
counsel.
(2) The public prosecutor, the defendant, or his defense counsel may move the court to set a preparatory hearing date. In such instance,
no party may raise an objection against the court s ruling on such motion.
(3) The court may assign a judge of a collegiate division to preside over a preparatory hearing. In this case, the assigned judge
shall have the same authority as the one of the court or the presiding judge as far as
a preparatory hearing concerned.
(4) A preparatory hearing shall be open to the public: Provided, That
it may be held behind closed doors if it is likely that the proceedings
of the hearing might be hindered if open to the public.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 266-8 (Attendance of Public Prosecutor and Defense Counsel)
(1) The public prosecutor and the defense counsel shall attend the pre-
- 85 -
paratory hearing.
(2) Court officials shall participate in the preparatory hearing.
(3) The court shall serve a notice of the preparatory hearing date to the public prosecutor, the defendant, and his defense
counsel.
(4) The court shall, if no defense counsel is appointed for the case
whose preparatory hearing date is designated, appoint a defense counsel
ex officio.
(5) The court may, if deemed necessary, summon the defendant, and the
defendant may appear in the preparatory hearing even when there is no summons from the court.
(6) The presiding judge shall inform the appearing defendant that he
may refuse to make a statement.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 266-9 (Matters Relating to Preparatory Hearing)
(1) The court may conduct the following acts in a preparatory hearing:
1. An act of clarifying indicted facts or applicable provisions of laws;
2. An act of permitting addition, withdrawal, or modification of indicted facts or applicable provisions of laws;
3. An act of clarifying arguments relating to indicted facts to put the issues of the case in order;
4. An act of demanding explanation on the contents that include a dif-
ficult calculation or any other complicated description;
5. An act of requiring to file a motion to admit evidence;
6. An act of clarifying the purport and substance of evidence in relation to an evidence for which a motion to admit is made;
7. An act of confirming opinions on a motion to admit evidence;
8. An act of rendering a ruling on whether to admit evidence;
9. An act of setting order and method of examination of evidence;
10. An act of rendering a ruling on a motion made in connection with inspection or copying of documents;
11. An act of setting or changing a trial date; and
12. An act of determining other matters necessary for proceedings of trial.
(2) Articles 296 and 304 shall apply mutatis mutandis to the prepar-
atory proceedings.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
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Article 266-10 (Confirmation of Results from Preparatory Hearing)
(1) The court shall, upon closing the preparatory hearing, notify the public prosecutor, the defendant, or his defense counsel
of the arranged
result in connection with issues and evidence of the case, and shall make sure whether there is any objection to the result.
(2) The court shall record the result put in order in connection with is-
sues and evidence of the case in the protocol of the preparatory hearing.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 266-11 (Inspection and Copying of Documents in Custody of De- fendant or Defense Counsel)
(1) When a defendant or his defense counsel makes an assertion con-
cerning a matter of law or fact in a trial or a preparatory hearing, such as non-existence at the scene, insanity, or mental or physical
retarda-
tion, the public prosecutor may demand the defendant or his defense counsel to allow him to inspect or copy, or issue in
writing, the following
documents:
1. Documents which the defendant or his defense counsel intends to make a motion to admit as evidence;
2. A statement that describes the names of persons whom the defen-
dant or his defense counsel intends to make a motion to admit as witnesses and their relations with the case;
3. Documents relating the weight of evidence of the documents under
subparagraph 1 or the statement under subparagraph 2; and
4. Documents relating to the defendant s or his defense counsel s asser- tion made in connection with a matter of law or fact.
(2) If the public prosecutor refused to allow a defendant or his defense counsel to inspect or copy, or deliver in writing, documents
under Article
266-3 (1), the defendant or his defense counsel may also refuse to allow
him to inspect or copy, or deliver in writing, documents under para- graph (1): Provided, That the foregoing shall not apply in cases where
the court rendered a ruling to dismiss the motion under Article 266-4 (1). (3) If a defendant or his defense counsel rejected the
demand under paragraph (1), the public prosecutor may move the court to allow him
to inspect or copy such documents or have them issued in writing.
(4) The provisions of Article 266-4 (2) through (5) shall apply mutatis
mutandis to the motion under paragraph (3).
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(5) Article 266-3 (6) shall apply mutatis mutandis to the documents
under paragraph (1).
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 266-12 (Grounds for Closing Preparatory Proceedings)
The court shall, when there is any of the following grounds, close pre- paratory proceedings: Provided, That the foregoing shall not apply in cases where a case falls under subparagraph 2 or 3 and there is a reason
enough to continue preparatory proceedings:
1. If the issues and evidence have been completely put in order;
2. If it has passed three months since the case was put to preparatory proceedings; and
3. If the public prosecutor, the defense counsel, or the summoned de- fendant did not make an appearance.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 266-13 (Effect of Closing of Preparatory Proceedings)
(1) If there is any evidence for which a motion to admit has not been made during preparatory proceedings, a motion to admit
such evidence
may be made only when there is any of the following grounds:
1. If such motion does not delay the litigation significantly; and
2. If the movant shows an unavoidable cause or event that made it impossible to submit the evidence during preparatory proceedings
without gross negligence on his part.
(2) Notwithstanding paragraph (1), the court may conduct examina-
tion of evidence ex officio.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 266-14 (Provisions Applicable Mutatis Mutandis)
Article 305 shall apply mutatismutandis to resumption of preparatory
proceedings.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 266-15 (Preparatory Proceedings During Trial)
The court may, if necessary for putting issues and evidence in order, put a case to preparatory proceedings even after the
first trial. In such case, the provisions governing preparatory proceedings prior to trial
shall apply mutatis mutandis.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 266-16 (Prohibition on Abuse of Inspected or Copied Documents)
(1) A defendant or his defense counsel (including a person who was a
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defendant or a defense counsel; hereafter the same shall apply in this
Article) may not deliver or present (including the provision through an electric telecommunications facility) a copy of a statement
or documents,
which the public prosecutor allowed him to inspect or copy pursuant to
Article 266-3 (1), to any other person for any purpose other than the pur- pose of using it for preparation of the relevant case or
related litigation.
(2) A defendant or a defense counsel who violated paragraph (1) shall
be punished by imprisonment for one year or less or a fine not exceeding five million won.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 267 (Designation of Date of Public Trial)
(1) The presiding judge shall fix the date for public trial.
(2) The defendant, his representative or proxy shall be summoned on the date for public trial.
(3) Notice of the date set for public trial shall be given to the public prosecutor, defense counsel and assistant.
Article 267-2 (Concentrative Examination)
(1) Examination on public trial days shall be concentrative.
(2) If two or more days are required for examination, the court shall remain open everyday, unless there is any unavoidable situation
otherwise.
(3) The presiding judge may set several dates for public trial at a time. (4) Even when it is impossible to keep the court open everyday
due to
any unavoidable situation, the presiding judge shall set next dates for public trial within the limit of 14 days from the preceding
dates for pub- lic trial, unless there is any extraordinary circumstances otherwise. (5) The persons involved in a litigation
shall adhere to dates for public trial and make efforts to avoid causing any trouble to examination, and the presiding judge may
take measures necessary for such purpose.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 268 (Assumption of Service of Writ of Summons)
Where the defendant is within the precincts of a court and is notified by the court of the date for a public trial, he shall be deemed to have been served with a writ of summons.
Article 269 (Postponement Period before First Trial)
(1) The date of the first trial shall be fixed in consideration of not less than five days as a postponement period after the service of writ of
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summons.
(2) When the defendant raises no objection thereto, the period referred to in the preceding paragraph may not be considered.
Article 270 (Change of Date of Public Trial)
(1) The presiding judge may change the date fixed for public trial ex
officio or upon request of a public prosecutor, the defendant or his de-
fense counsel.
(2) An order rejecting an application for a change of the date of trial shall not be served.
Article 271 (Submission of Materials Giving Causes for Absence)
When the person who has been summoned or notified for date of public trial is not able to appear on the fixed date of trial on account
of sickness
or other reasons, he shall submit a medical certificate or other materials.
Article 272 (Reference to Public Offices, etc.)
(1) The court may ask any public office, or public or private organiza- tions, either exofficioor upon request of a public prosecutor, the defen- dant, or his defense counsel, for reports on necessary particulars or for
preserved documents.
(2) The application as referred to in the preceding paragraph may be denied by means of a ruling.
Article 273 (Investigation of Evidence before Date of Public Trial)
(1) The court may, if it deemed necessary for preparatory proceedings, upon application, permit the public prosecutor, the defendant,
or his defense counsel to examine the defendant or other witnesses and to in-
spect evidence, to appraise or to translate before the date fixed for pub- lic trial.
(2) The presiding judge may have any of his associate judges carry out
the action mentioned in the preceding paragraph.
(3) The application mentioned in paragraph (1) may be denied by means of a ruling.
Article 274 (Submission of Evidence by Party before Date of Public Trial) A public prosecutor, the defendant or his defense counsel may submit document or articles as evidence to the court before the date fixed for public trial. <Amended by Act No. 705, Sep. 1, 1961>
Article 275 (Hearing in Court Room)
(1) A hearing in a public trial shall be conducted in a courtroom.
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(2) The courtroom shall be open with the judge, the public prosecutor,
and court officials present. <Amended by Act No. 8496, Jun. 1, 2007>
(3) The public prosecutor s seat shall be on the same level as the defen-
dant and the defense counsel s in right and left sides of judges bench respectively and the seat for a witness shall be in front
of judges bench:
Provided, That the defendant shall sit in the witness box when he is ex-
amined as defendant. <Amended by Act No. 8496, Jun. 1, 2007>
Article 275-2 (Presumption of Innocence)
The defendant shall be presumed to be innocent until he is finally ad- judged to be guilty.
[This Article Newly Inserted by Act No. 3282, Dec. 18, 1980]
Article 275-3 (Principle of Oral Pleading)
Pleadings in the courtroom shall be made oral.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 276 (Right for Attendance of Defendant)
When the defendant does not appear on the day fixed for public trial, the court shall not sit without special provisions:
Provided, That if the
defendant is a juristic person, it may have a proxy appear.
Article 276-2 (Special Rules for Disabled and Those who Need Special
Protection)
(1) The presiding judge or a judge may, when he examines a defendant, allow a person who has a reliable relationship with the defendant
to sit
in company with the defendant, exofficio or upon receiving a request of
the defendant or his legal representative or the public prosecutor, if the
defendant falls under any of the following subparagraphs:
1. If the defendant lacks the ability to discern right from wrong or make and communicate a decision due to a physical or mental
disorder;
and
2. If it is necessary for facilitating the defendant s psychological stability and smooth communications in light of his age, gender,
nationality,
or any other factor.
(2) The scope of persons eligible for sitting in company with a defendant with a reliable relationship under paragraph (1) and the
procedure and
method of sitting in company shall be prescribed by the Supreme Court
Regulations.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 277 (Misdemeanor Cases and Non-appearance of Defendant)
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A defendant shall not be required to make an appearance, if a case falls
under any of the following subparagraphs. In such case, a person desig- nated by the defendant may appear before the court
on behalf of the
defendant:
1. If the case is for a fine or minor fine not exceeding five million won maximum;
2. If it is obvious that indictment for the case will be dismissed or ab-
solved by a ruling;
3. If the case is for punishment by imprisonment, with or without prison labor, for three years maximum or less, a fine exceeding
five million won maximum, or disciplinary lockup, and the court granted, upon
receiving a petition for permission of non-appearance of the defen- dant, the permission for non-appearance of the defendant because
it found that non-appearance of the defendant would not cause any
problem to protection of his rights: Provided, That the defendant
shall make an appearance on a trial day for the proceedings under
Article 284 or sentencing; and
4. If the case is brought to the trial for sentencing upon a motion filed only by the defendant for formal trial under Article
453 (1).
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 277-2 (Refusal of Appearance of Defendant and Trial Proceed- ings)
(1) If the detained defendant refuses to appear without due cause in
cases where there is no trial opening without his appearance, or if it is deemed that any correctional officer cannot bring
him to the court or
there is significant obstacle in bringing him to the court, the trial may
proceed without appearance of the defendant. <AmendedbyActNo.8496,Jun.
1, 2007>
(2) In proceedings of trial under paragraph (1), opinions of the public prosecutor and defense counsel shall be heard.
[This Article Newly Inserted by Act No. 5054, Dec. 29, 1995]
Article 278 (Absence of Public Prosecutor)
If a public prosecutor is notified of the date fixed for public trial for two times or more and fails to appear, or in cases where
only judgment is
pronounced, the court may proceed without appearance of the public prosecutor. <Amended by Act No. 5054, Dec. 29, 1995>
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Article 279 (Procedure Lead of Presiding Judge)
Procedure lead on a date fixed for public trial shall be conducted by the presiding judge.
Article 279-2 (Participation of Professional Examiners)
(1) A court may, if necessary to clarify an issue at bar or preside a liti- gation smoothly, designate a professional examiner by
ruling, exofficio or upon a motion of the public prosecutor, defendant, or his defense
counsel to have him participate in the proceedings including preparatory hearings and trials.
(2) A professional examiner may submit a written statement that con-
tains an explanation or an opinion based on his expertise or make an oral statement on such an explanation or opinion based
on his expertise:
Provided, That the examiner shall not participate in a conference on
judgment.
(3) Subject to the presiding judge s permission, a professional examiner may ask a defendant or his defense counsel or any person
involved in
the case at bar, including a witness and an expert witness, questions directly concerning matters necessary for clarifying an issue
an at bar. (4) As regards a written statement submitted by a professional examiner
or an oral statement made by such examiner on an explanation or opin- ion, the court shall give the public prosecutor, the defendant,
or his de- fense counsel an opportunity to make a statement, oral or in writing, on
his opinion.
[This Article Newly Inserted by Act No. 8730, Dec. 21, 2007]
Article 279-3 (Revocation of Decision on Professional Examiner s Par- ticipation)
(1) A court may, if deemed proper, revoke a decision under Article 279-
2 (1), upon a motion of the public prosecutor, the defendant, or his de- fense counsel or ex officio.
(2) A court shall, upon a motion of the defendant or his defense counsel, and the public prosecutor in concert to revoke a decision
under Article
279-2 (1), revoke the decision.
[This Article Newly Inserted by Act No. 8730, Dec. 21, 2007]
Article 279-4 (Designation of Professional Examiners)
(1) When a court intends to have a professional examiner participate in a litigation pursuant to Article 279-2 (1), it shall hear the opinions
- 93 -
of the public prosecutor and the defendant or his defense counsel to des-
ignate one or more professional examiners for each case.
(2) A professional examiner shall be entitled to compensation as pre-
scribed by the Supreme Court Regulations, and other expenses including travel expense, daily allowance, and accommodations, if necessary,
may be paid to him.
(3) Other necessary matters concerning designation of a professional ex- aminer shall be prescribed by the Supreme Court Regulations.
[This Article Newly Inserted by Act No. 8730, Dec. 21, 2007]
Article 279-5 (Exclusion of and Challenge against Professional Exam- iner)
(1) Articles 17 through 20 and 23 shall apply mutatismutandis to pro-
fessional examiners.
(2) If there is a motion to exclude or challenge a professional examiner, the professional examiner concerned may not participate
in the litigation of the case at bar until a decision on such motion becomes final and con- clusive. In such instance, the professional
examiner concerned may make a statement on the motion for exclusion or challenge.
[This Article Newly Inserted by Act No. 8730, Dec. 21, 2007]
Article 279-6 (Power of Assigned Judge)
In cases where an assigned or delegated judge presides a litigation, the duties of the court or the presiding judge under the provisions
of Article
279-2 (2) through (4) shall be carried out by the assigned or delegated judge.
[This Article Newly Inserted by Act No. 8730, Dec. 21, 2007]
Article 279-7 (Offense of Divulgence of Secret)
A professional examiner or a person who served as a professional exam- iner shall be punished by imprisonment, with or without prison labor, for two years or less or a fine not exceeding ten million won, if he divulges other person s secret known to him in the course of performance of his duties as a professional examiner.
[This Article Newly Inserted by Act No. 8730, Dec. 21, 2007]
Article 279-8 (Legal Fiction of Public Official for Application of Penal
Provisions)
A professional examiner shall be regarded as a public official in apply- ing penal provisions of Articles 129 through 132 of the Criminal Act.
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[This Article Newly Inserted by Act No. 8730, Dec. 21, 2007]
Article 280 (Prohibition of Body Restriction in Court)
The defendant in public trial court shall be subject to no physical re- straint: Provided, That the presiding judge may, if the defendant em-
ploys violence or it is deemed that he may flee, order restriction of body of the defendant or take other necessary measures.
<Amended by Act No.
5054, Dec. 29, 1995>
Article 281 (Duty of Defendant to Remain in Court and Court Police) (1) The defendant shall not leave the court without permission of the presiding judge.
(2) The presiding judge may take necessary measures to prevent the defendant from leaving court and to maintain order in court.
Article 282 (Required Defense)
With regard to any case falling under any subparagraph of Article 33 (1) or to any case for which a defense counsel is appointed under
the pro- visions of paragraphs (2) and (3) of the same Article, the court may not
sit without the defense counsel: Provided, That this shall not apply to
any case where only a judgment is pronounced. <Amended by Act No. 7965,
Jul. 19, 2006>
Article 283 (Defense Counsel Assigned by Court)
In the case of the main sentence of Article 282, when the defense counsel fails to attend, the court shall appoint a defense counsel ex officio.
<Amended by Act No. 7965, Jul. 19, 2006>
Article 283-2 (Defendant s Right to Remain Silent)
(1) A defendant has a right to remain silent or refuse to make a state- ment for an individual question.
(2) The presiding judge shall inform the defendant that he has a right
to refuse to make a statement under paragraph (1).
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 284 (Identification Question)
The presiding judge shall confirm that the defendant is the proper person by asking his name, age, reference domicile, domicile, and occupation.
<Amended by Act No. 8435, May 17, 2007>
Article 285 (Opening Statement of Public Prosecutor)
The public prosecutor shall recite indicted facts, charged crimes, and applicable provisons of laws as described in the written prosecution:
Provided, That the presiding judge may, if deemed necessary, have the
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public prosecutor state outlines of the prosecution.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 286 (Opening Statement of Defendant)
(1) The defendant shall make a statement on whether he admits indicted facts after the public prosecutor finishes his opening statement:
Pro- vided, That the foregoing shall not apply in cases where the defendant exercises his right to remain silent.
(2) The defendant and his defense counsel may plead facts favorable to the defendant.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 286-2 (Ruling on Summary Trial Procedures)
When the defendant makes a confession on charges at a public trial court, the court may make a ruling that the court will try only
the charges ac-
cording to the summary trial procedures. <AmendedbyActNo. 5054, Dec. 29,
1995>
[This Article Newly Inserted by Act No. 2450, Jan. 25, 1973]
Article 286-3 (Cancellation of Ruling)
When it is deemed that confessions made by the defendant concerning the cases on which the ruling under the preceding Article
is made, are not reliable, or it is not proper markedly for the court to try such cases
according to the summary trial procedures, the ruling shall be cancelled
after seeking opinions of the public prosecutor concerned.
[This Article Newly Inserted by Act No. 2450, Jan. 25, 1973]
Article 287 (Presiding Judge s Organization of Issues and Statements of Public Prosecutor and Defense Counsel concerning Evidence)
(1) After the defendant finishes his opening statement, the presiding
judge may ask the defendant or his defense counsel questions necessary for organizing issues in order.
(2) Before beginning examination of evidence, the presiding judge may allow the public prosecutor and defense counsel to make statements
con-
cerning the arguments relating to indicted facts, plans for proving, and
other matters: Provided, That a statement shall not be allowed if such
statement involves any matter that is likely to bring about prejudice or bias of the court in the case and is based on any
material that is in-
admissible as evidence or that the party has no intention to produce as evidence.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
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Article 288 Deleted. <by Act No. 705, Sep. 1, 1961>
Article 289 Deleted. <by Act No. 8496, Jun. 1, 2007>
Article 290 (Examination of Evidence)
Examination of evidence shall be conducted after the proceedings under
Article 287 are completed.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 291 (Examination of Evidence)
(1) Documents or articles produced by the litigant as evidence or the doc- uments prepared or transmitted pursuant to the provisions
of Articles
272 and 273 shall be shown, explained and examined separately in open
court by the public prosecutor and the defense counsel or the defendant. (2) The presiding judge may examine exofficio the documents or arti-
cles mentioned in the preceding paragraph in open court.
[This Article Newly Inserted by Act No. 705, Sep. 1, 1961]
Article 291-2 (Order of Examination of Evidence)
(1) The court shall examine the evidence that the defendant or his de- fense counsel moved to admit after the evidence that the public
prose- cutor moved to admit is examined.
(2) The court shall examine the evidence that it determined ex officio
to examine after the examination under paragraph (1) is completed.
(3) The court may, exofficio or upon a motion of the public prosecutor,
the defendant, or his defense counsel, change the order under para-
graphs (1) and (2).
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 292 (Examination Method of Documentary Evidence)
(1) When a documentary evidence is examined upon a motion of the pub- lic prosecutor, the defendant, or his defense counsel, the movant
shall
recite the evidence.
(2) When the court examines a documentary evidence exofficio, the pos-
sessor or the presiding judge shall recite the evidence.
(3) Notwithstanding paragraphs (1) and (2), the presiding judge may,
if deemed necessary, conduct the examination by manners of informing. (4) The presiding judge may order a court official to give the
recitation
or announcement under the provisions of paragraphs (1) through (3).
(5) The presiding judge may, if it is deemed that inspection is more appropriate than any other method, conduct the examination
by making
a documental evidence available for inspection.
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[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 292-2 (Examination Method of Evidential Materials)
(1) When an evidential material is examined upon a motion of the public prosecutor, the defendant, or his defense counsel, the movant
shall pro- duce the material.
(2) When the court examines an evidential material exofficio, the pos-
sessor or the presiding judge shall produce the material.
(3) The presiding judge may order a court official to show a material under paragraphs (1) and (2).
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 292-3 (Examination Method of Miscellaneous Evidence) Necessary matters concerning examination of any evidence other than documents, including drawings, photographs, audio tapes, video tapes, computer discs, and other goods made for storage of information, shall be prescribed by the Supreme Court Regulations.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 293 (Opinion of Defendant after Examination)
The presiding judge shall ask the defendant for his opinion about the examination of articles of evidence and shall inform him that
he is able to apply for necessary examination of evidence for the protection of his
rights.
Article 294 (Parties Motion for Evidence)
(1) The public prosecutor, the defendant, or his defense counsel may produce a document or an article as evidence and may
also move the court to examine a witness, an expert witness, an interpreter, or a trans- lator.
(2) The court may, if it finds that the conclusion of a public trial is be- ing delayed because the public prosecutor, the defendant,
or his defense counsel intentionally makes a motion for evidence late, deny the motion by ruling, ex officio or upon the opponent s motion.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 294-2 (Right of Victim to Make Statements)
(1) The court shall, upon receiving a petition from a victim of a crime or his legal representative (including his spouse, lineal
relative, sibling, if the victim is dead; hereafter referred to as victim in this Article),
admit such victim as witness for examination: Provided, That the fore-
going shall not apply to any of the following cases: <Amended by Act No.
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8496, Jun. 1, 2007>
1. Deleted; <by Act No. 8496, Jun. 1, 2007>
2. In cases where it is recognized that the victim has already made suf- ficient statements relating to a case concerned in trial
proceedings
and therefore, there is no necessity of restatement; and
3. In cases where there is apprehension that the procedure of public trial may be delayed markedly on account of the statement of
the victim.
(2) The court shall, whenever it examine a victim pursuant to para- graph (1), give the victim an opportunity to make a statement
on the degree and result of damage, his opinion concerning punishment of the
defendant and other matters relating to the case at bar. <AmendedbyAct
No. 8496, Jun. 1, 2007>
(3) In cases where there are a number of applicants under paragraph (1) concerning identical facts constituting the crime, the court may limit the number of persons to make a statement. <Amended by Act No. 8496, Jun. 1,
2007>
(4) In cases where the applicant pursuant to paragraph (1) has not ap- peared before the court after receiving a subpoena without a reasonable cause, the application is deemed to be withdrawn. <Amended by Act No.
8496, Jun. 1, 2007>
[This Article Newly Inserted by Act No. 3955, Nov. 28, 1987]
Article 294-3 (Non-disclosure of Victim s Statements)
(1) The court may, when it examines a victim of a crime as a witness, decide by a ruling to proceed the examination behind closed
doors, if it is deemed necessary for the victim s privacy and personal safety, upon a request from the victim or his legal representative
or the public pro- secutor.
(2) The decision under paragraph (1) shall be informed with the reasons therefor.
(3) The court may permit a person to be present in the court even when
it makes the decision under paragraph (1), if such person s presence is deemed proper.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 294-4 (Victim s Inspection and Copying of Litigation Record) (1) A victim of a case pending in a court (including his spouse, lineal relative, and sibling, if the victim is dead or suffers from severe men-
- 99 -
tal or physical disorder), the legal representative of the victim, or the
spouse, lineal relative, sibling, or attorney-at-law with power of attor- ney granted by the victim or his legal representative may
file an appli-
cation for inspection or copying of the litigation record with the presiding judge.
(2) The presiding judge shall, upon receiving the application under
paragraph (1), notify the public prosecutor, the defendant, or his defense counsel of such application.
(3) The presiding judge may, if it is deemed necessary for the victim s
remedies or if there is any other justifiable ground, and if it is proper in light of the nature of the crime involved, the status
of the trial, and other circumstances, permit the victim to inspect or copy the litigation
record.
(4) The presiding judge may, when he permits copying of the litigation record pursuant to paragraph (3), put a restriction on the
purpose of use
of the copied litigation record or put a condition as he deems proper. (5) A person who inspected or copied the litigation record
under para- graph (1) shall not disparage the reputation of the persons involved in
the case unfairly or harm the peace of their lives or create any trouble to the investigation or trial in using the information acquired
by such inspection or copying.
(6) No objection shall be allowed to the rulings under paragraphs (3)
and (4).
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 295 (Ruling on Application for Evidence)
The court shall decide on the application for evidence provided for in
Articles 294 and 294-2, and may examine the evidence exofficio. <Amended
by Act No. 3955, Nov. 28, 1987>
Article 296 (Objection on Examination of Evidence)
(1) A public prosecutor, the defendant or his defense counsel may raise objections regarding the examination of evidence.
(2) The court shall render a ruling on the objections raised under the
preceding paragraph.
Article 296-2 (Examination of Defendant)
(1) The public prosecutor or the defense counsel may successively ex- amine the defendant with necessary questions concerning indicted facts
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and circumstances after the examination of evidence is completed: Pro-
vided, That the presiding judge may, if deemed necessary, permit such
examination even before the examination of evidence is completed.
(2) The presiding judge may, if deemed necessary, examine the defen- dant.
(3) Article 161-2 (1) through (3) and (5) shall apply mutatismutandis
to the examination under paragraph (1).
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 297 (Withdrawal from Court)
(1) When the presiding judge deems that a witness or an expert witness is unable to make a sufficient statement in the presence of
the defendant
or any of the persons in the court audience, he may order the latter to withdraw from court and make the former state his opinion.
The same shall apply in cases where the presiding judge deems that the defendant
is unable to make his statement in the presence of another defendant. (2) In the case of withdrawal of the defendant in accordance
with the preceding paragraph, when the co-defendant, witness or expert witness
has finished his oral statement, the gist of the statement shall be an- nounced to the defendant by the court official after making
the withdrawn defendant appear in court. <AmendedbyActNo. 705,Sep. 1, 1961; ActNo.8496,
Jun. 1, 2007>
Article 297-2 (Examination of Evidences in Summary Trial Procedures) The provisions of Articles 161-2, 290 through 293, and 297 shall not ap- ply to the cases on which the ruling under Article 286-2 is made, but the court may conduct examination of evidences according to the meth- ods which are deemed appropriate by the court.
[This Article Newly Inserted by Act No. 2450, Jan. 25, 1973]
Article 298 (Changes in Indictment)
(1) The public prosecutor may, with permission of the competent court, add, delete or change charges or applicable provisions of Acts
stated in
the indictment. In this case, the identity of the charges shall not be dis-
turbed.
(2) In cases where the court deems it reasonable in view of trial process, they shall request for the addition or change of charges
or applicable provisions of Acts.
(3) When there are additions, withdrawal or changes of charges or ap-
- 101 -
plicable provisions of Acts, the court shall promptly notify the causes
thereof to the defendant or his defense counsel.
(4) In cases where the court is afraid that the addition, withdrawal or
change of charges or applicable provisions of Acts in the indictment under the preceding three paragraphs may increase
disadvantages of
the defendant, the court may, by a ruling, exofficio or upon request of
the defendant or defense counsel, grant a recess of the public trial for
a period necessary for the defendant to prepare his defense.
[This Article Wholly Amended by Act No. 2750, Jan. 25, 1973]
Article 299 (Restriction of Oral Proceedings)
The presiding judge shall, when a statement or inquiry of the parties connected with a lawsuit is repetitious or is a matter
irrelevant to the
trial, restrict it to the extent that it does not harm the substantial rights of the parties connected with the lawsuit.
Article 300 (Separate or Joint Oral Proceedings)
The court may, when it deems necessary, upon request of a public pros- ecutor, the defendant or his defense counsel or ex officio, by means of
a ruling, order separate or joint oral proceedings.
Article 301 (Renewal of Proceedings)
Where a judge is changed subsequent to the commencement of public trial, the proceedings shall be renewed: Provided, That this shall not
apply in cases where only a judgment is pronounced.
Article 301-2 (Cancellation on Summary Trial Procedure and Renewal of Proceedings)
When the ruling under Article 286-2 is cancelled, the proceedings shall
be renewed: Provided,That this shall not apply to the case where a public
prosecutor, the defendant or his defense counsel has no objection.
[This Article Newly Inserted by Act No. 2750, Jan. 25, 1973]
Article 302 (Opinion of Public Prosecutor after Examination of Evi- dence)
When the testimony and examination of evidence is finished, the public
prosecutor shall state his opinion concerning the facts and the appli- cation of law: Provided, That in the case of Article 278, the public pros-
ecutor shall be deemed to have stated his opinion in accordance with the indictment.
Article 303 (Last Statement of Defendant)
The presiding judge shall afford an opportunity to the defendant and his
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defense counsel to make a final plea after hearing the opinion of the public
prosecutor.
Article 304 (Objection on Disposition by Presiding Judge)
(1) A public prosecutor, the defendant or his defense counsel may raise an objection to any ruling by a presiding judge.
(2) The court shall render a ruling on the objection raised under the
preceding paragraph.
Article 305 (Re-Opening of Oral Proceedings)
A court may, if necessary, reopen oral proceedings which had been con- cluded, by means of a ruling, upon request of the public prosecutor,
the
defendant, or his defense counsel, or ex officio.
Article 306 (Suspension of Procedures of Public Trial)
(1) If the defendant is in unsound mind, the public trial may be sus- pended, during the continuance of such state, by the
court on request of a public prosecutor, or his defense counsel, or by means of a ruling.
(2) When the defendant is unable to appear in court because of sick- ness, the trial shall be suspended until it is possible for
him to appear, by the court on request of a public prosecutor, the defendant or his de-
fense counsel, or by means of a ruling.
(3) In suspending the trial in accordance with the preceding two par- agraphs, a court shall hear the opinion of a doctor.
(4) Where it is obvious that the defendant will be pronounced innocent, acquitted, exempted from punishment, or dismissed from the
public pros- ecution, the decision shall be made without the defendant appearance
in the court notwithstanding the provisions of paragraphs (1) and (2). (5) The provisions of paragraphs (1) and (2) shall not apply
in cases where a proxy may appear in the court in accordance with the provi-
sions of Article 277.
SECTION 2 Evidence
Article 307 (No Evidence No Trial Principle)
(1) Fact finding shall be based on evidence.
(2) Criminal facts shall be proved to the extent that there is no reason- able doubt.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
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Article 308 (Principle of Free Evaluation of Evidence)
The probative value of evidence shall be left to the discretion of judges.
Article 308-2 (Exclusion of Evidence Illegally Obtained)
Any evidence obtained in violation of the due process shall not be ad- missible.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 309 (Probative Value of Confession Caused by Duress, etc.) Confession of a defendant extracted by torture, violence, threat or after prolonged arrest or detention, or which is suspected to have been made involuntarily by means of fraud or other methods, shall not be admitted as evidence of guilt. <Amended by Act No. 1500, Dec. 13, 1963>
Article 310 (Evidence against Defendant)
When the confession of a defendant is the only evidence against him, the confession shall not be taken as evidence of guilt.
Article 310-2 (Hearsay Evidence and Limitation of Probative Value of
Evidence)
Except as provided for in Articles 311 through 316, any document which contains a statement in place of the statement made at a preparatory hearing or during public trial, or any statement the import of which is another person s statement made outside preparatory hearing or at the time other than the public trial date, shall not be admitted as evidence.
[This Article Newly Inserted by Act No. 705, Sep. 1, 1961]
Article 311 (Protocols of Court or Judge)
Any protocol which contains statements made by the defendant or per- sons other than the defendant at a preparatory hearings or during
pub- lic trial, and results of inspection of evidence by courts or judges may
be used as evidences. The same shall apply to a protocol prepared pur-
suant to Articles 184 and 221-2. <AmendedbyActNo.2450,Jan. 25,1973; Act
No. 5054, Dec. 29, 1995>
[This Article Wholly Amended by Act No. 705, Sep. 1, 1961]
Article 312 (Protocol Prepared by Public Prosecutor or Judicial Police
Officer)
(1) A protocol in which the public prosecutor recorded a statement of a defendant when the defendant was at the stage of suspect is
admissible
as evidence, only if it was prepared in compliance with the due process and proper method, the defendant admits in his pleading
in a prepar-
atory hearing or a trial that its contents are the same as he stated, and
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it is proved that the statement recorded in the protocol was made in a
particularly reliable state.
(2) Notwithstanding paragraph (1), if the defendant denies the authen- ticity in formation of the protocol, it is admissible as evidence,
only when it is proved by a video-recorded product or any other objective means
that the statement recorded in the protocol is the same as the defendant
stated and was made in a particularly reliable state.
(3) A protocol prepared by any investigative institution other than a public prosecutor for examination of a suspect is admissible
as evidence,
only if it was prepared in compliance with the due process and proper method and the defendant, who was the suspect at the time,
or his de-
fense counsel admits its contents in a preparatory hearing or a trial.
(4) A protocol in which a public prosecutor or a judicial police officer recorded a statement of any person other than the defendant
is admis-
sible as evidence, only if it was prepared in compliance with the due
process and proper method, it is proved by a statement made by the orig- inal stater on a preparatory hearing or a trial, a video-recorded
product
or any other objective means that the contents of the protocol are the
same as what he stated before the public prosecutor or judicial police officer, and the defendant or his defense counsel has
an opportunity to
examine the original stater in relation to its contents in a preparatory
hearing or a trial: Provided, That it is admissible only when it is proved
that the statement recorded in the protocol was made in a particularly reliable state.
(5) The provisions of paragraphs (1) through (4) shall apply mutatis
mutandis to the statements prepared by a defendant or any person other
than a defendant in the course of investigation.
(6) A protocol in which a public prosecutor or judicial police officer re- corded the result of verification is admissible as evidence,
if it was pre-
pared in compliance with the due process and proper method, and the
authenticity of its formation is proved by a statement made by the au- thor in a preparatory hearing or a trial.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 313 (Statement, etc.)
(1) A statement prepared by a defendant or any other person, except the protocols mentioned in the preceding two Articles, or a written state-
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ment, if there being the handwriting, a signature or a seal of maker or
stater, may be introduced into evidence, if it is proven to be genuine by the maker or stater thereof by his testimony or stater at
a preparatory
hearing or during a public trial: Provided, That the document contain-
ing the statement of the defendant may be introduced into evidence only when proven genuine by the testimony of the maker or
stater thereof
at a preparatory hearing or during a public trial and when the statement is made under circumstances which would lend it special credibility,
re-
gardless of the statement made by the defendant at a preparatory hear-
ing or during public trial.
(2) The provision of paragraph (1) shall also apply to documents con- taining the development and results of expert opinion.
[This Article Wholly Amended by Act No. 705, Sep. 1, 1961]
Article 314 (Exception to Admissibility of Evidence)
In case of Article 312 or 313, if a person who is required to make a statement in a preparatory hearing or a trial is unable to
make such statement because he is dead, ill, or resides abroad, his whereabout is
not known, or there is any other similar cause, the relevant protocol and other documents are admissible as evidence: Provided, That it is ad-
missible only when it is proved that the statement or preparation was made in a particularly reliable state.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 315 (Documents Admitted Ipso Facto Evidence)
The following documents may be admitted as evidence: <Amended by Act
No. 8435, May 17, 2007>
1. A certificate of the family relationship record, a copy of notarial deed or such other public documents certifying the facts which
a public of- fice of Korea or an official of a foreign government has the duty or authority to certify;
2. An account book, logbook, or other documents prepared in the regular course of business; and
3. Documents prepared under circumstances which lend special credi- bility to the assertions of facts contained therein.
Article 316 (Statement of Hearsay)
(1) If a statement made by a person other than a defendant (including a person who interrogated the defendant as a suspect before the insti-
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tution of public prosecution or who was involved in such interrogation;
hereafter the same shall apply in this Article) in a preparatory hearing or a trial conveys a statement of the defendant, such statement
is ad-
missible as evidence only if it is proved that the statement was made
in a particularly reliable state. <Amended by Act No. 8496, Jun. 1, 2007>
(2) Oral testimony given by a person other than the defendant at a pre-
paratory hearing or during a public trial, the import of which is the statement of a person other than the defendant, shall be admitted
into evidence only when the maker of the original statement is unable to
testify because he is dead, ill, or resides abroad, his whereabout is not
known, or there is any other similar reason, and only when there exist circumstances which lend special credibility to such testimony.
<Amended
by Act No. 5054, Dec. 29, 1995; Act No. 8496, Jun. 1, 2007> [This Article Wholly Amended by Act No. 705, Sep. 1, 1961]
Article 317 (Voluntary Statements)
(1) Oral statements given by a defendant or a person other than the defendant shall not be admitted as evidence unless the
statements are
made voluntarily.
(2) A document which contains an oral statement referred to in the pre- ceding paragraph shall not be admitted as evidence unless
it is proved
that they have been made voluntarily.
(3) In cases where a part of protocol refers to evidence by inspection is part to oral statement given by the defendant or
a person other than
the defendant, only the part thereof shall be governed by the preceding
two paragraphs.
Article 318 (Agreement of Parties and Probative Value of Evidence) (1) Documents or articles on which the public prosecutor and the de- fendant agree shall be admitted as evidence when deemed
to be genuine. (2) In cases where trial may be held without the presence of the defen- dant and the defendant does not appear,
he shall be deemed to have given the consent mentioned in the preceding paragraph: Provided, That the same shall not apply where a proxy or defense counsel appears for the defendant.
Article 318-2 (Evidence for Challenging Admissibility of Evidence)
(1) A document or statement otherwise inadmissible as evidence under
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the provisions of Articles 312 through 316 is admissible, if it is produced
to challenge the admissibility of a statement of a defendant or a person other than the defendant (including a person who interrogated
the de-
fendant as a suspect before the institution of public prosecution or who was involved in such interrogation; hereafter the same
shall apply in
this Article) in a preparatory hearing or a trial.
(2) Notwithstanding paragraph (1), a video-recorded product that con- tains a statement of a defendant or a person other than the
defendant
may be replayed to the defendant or such person for viewing in a pre-
paratory hearing or a trial, only when it is deemed necessary to refresh his recollection concerning a matter of which the defendant
or the per-
son has now insufficient recollection in testifying.
[This Article Wholly Amended by Act No. 8496, Jun. 1, 2007]
Article 318-3 (Exceptions to Probative Value of Evidence in Summary
Trial Procedures)
With regard to evidence of the cases on which the ruling under Article
286-2 is made, it shall be regarded that the consent under Article 318 (1) is made concerning the evidence of Articles 310-2, 312
through 314,
and 316: Provided, That exceptions shall be made in cases where public
prosecutors, the defendant or his defense counsel raise their objections against the use of evidences.
[This Article Newly Inserted by Act No. 2450, Jan. 25, 1973]
SECTION 3 Judgment of Trial
Article 318-4 (Sentencing)
(1) A sentence shall be pronounced on the day on which pleadings and arguments are closed: Provided, That a sentencing date may be set sep- arately if there is an extraordinary reason.
(2) When a sentence is pronounced on the day on which pleadings and arguments are closed, the written judgment may be prepared after
pro- nouncing the sentence.
(3) The sentencing date under the proviso of paragraph (1) shall be set within the limit of fourteen days after closing pleadings
and arguments.
[This Article Newly Inserted by Act No. 8496, Jun. 1, 2007]
Article 319 (Judgment of Incompetence)
When a case pending against a defendant does not come within the ju-
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risdiction of a court, a pronouncement to that effect shall be made by
judgment. <Amended by Act No. 8730, Dec. 21, 2007>
Article 320 (Incompetency of Territorial Jurisdiction)
(1) A court shall not make a pronouncement of incompetency for lack of territorial jurisdiction, except upon request by
the defendant.
(2) A request by the defendant for lack of territorial jurisdiction shall
be made prior to a hearing of the case.
Article 321 (Pronouncement of Punishment and Matters to be Pro- nounced)
(1) When there is proof of guilt in regard to the case pending against
a defendant, a penalty shall be pronounced by judgment except in case of remission of penalty or suspension of pronouncement of punishment.
(2) Suspension of execution of punishment, the calculation of the num- ber of days in arrest before trial, and the period of confinement
in work- house shall be pronounced in the judgment simultaneously with the pro-
nouncement of the penalty.
Article 322 (Remission of Penalty and Judgment of Suspension of Pro- nouncement of Punishment)
Where a remission of penalty or suspension of pronouncement of pun-
ishment is to be rendered in a case pending against the defendant, such pronouncement shall be made by judgment.
Article 323 (Reason to be Indicated in Judgment)
(1) In pronouncing the defendant guilty, the facts constituting the of- fense, the gist of the evidence, and the applicable Acts and
subordinate statutes shall be clearly indicated in the judgment.
(2) When an oral statement has been made as to legal grounds barring the formation of the offense, or as to facts by reason of which
the penalty should be increased or diminished, the decision thereon shall be also
indicated in the judgment.
Article 324 (Notice of Appeal)
In case of pronouncing punishment, the presiding judge shall announce to the defendant the time for appeal and the court to which appeal can be made.
Article 325 (Judgment of Not Guilty)
A finding not guilty<.. image removed ..>shall be pronounced by judgment if the facts against the defendant do not constitute an offense or if the evidence of
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the criminal act is insufficient.
Article 326 (Judgment of Acquittal)
Acquittal shall be pronounced by judgment in the following cases:
1. Where a finally binding judgment has already been rendered;
2. Where amnesty has been proclaimed;
3. Where the limitations period has expired; and
4. Where the punishment has been repealed or the applicable Acts and subordinate statutes has been abolished subsequent to the commis-
sion of the offense.
Article 327 (Judgment Dismissing Public Prosecution)
Public prosecution shall be dismissed by judgment in the following cases:
1. Where the court has no jurisdiction over the defendant;
2. Where the procedure for instituting public prosecution is void by rea- son of its having been contrary to the provisions
of Acts;
3. Where a new public prosecution is instituted for the case for which public prosecution has been already instituted;
4. Where public prosecution is instituted contrary to the provisions of
Article 329;
5. Where there is withdrawal of a complaint in the case which shall be prosecuted only upon complaint; and
6. Where the injured party declares his intention not to prosecute a case which cannot be prosecuted against the clearly expressed
intention
of such person, or where the declaration of intention in such case is
withdrawn.
Article 328 (Ruling Dismissing Public Prosecution)
(1) Public prosecution shall be dismissed by ruling in the following cases:
1. Where public prosecution has been withdrawn;
2. Where a defendant dies or a juristic person who is a defendant ceases to exist;
3. Where it cannot be tried in accordance with the provisions of Article
12 or 13; and
4. Where the counts in an indictment do not constitute an offense even if true.
(2) Against a ruling as referred to in the preceding paragraph immedi- ate appeal to the High Court may be filed.
Article 329 (Withdrawal of Public Prosecution and Reinstitution of
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Public Prosecution)
When a ruling dismissing public prosecution as a result of its being withdrawn becomes final, a new public prosecution can be instituted for the same offense only if it is based upon newly discovered material evi- dence.
Article 330 (Judgment without Oral Statement of Defendant)
In cases where a defendant refuses to make a statement, retires from court without permission of the presiding judge or is ordered
by the pre-
siding judge to retire from court for the maintenance of order, a judg-
ment may be rendered without hearing his statement.
Article 331 (Pronouncement of Judgment of Not Guilty and Effect of
Warrant of Detention)
A warrant of detention shall lose its effect on rendition of a judgment of not guilty , acquittal, remission of penalty, suspension of pronounce- ment of punishment, suspension of execution of punishment, dismissal of public prosecution or on the imposition of a fine or minor fine. <Amended
by Act No. 5054, Dec. 29, 1995>
≪The proviso of this Article is deleted by Act No. 5054 on December
29, 1995 following the decision of unconstitutionality made by the Con-
stitutional Court on December 24, 1992≫
Article 332 (Pronouncement of Confiscation and Article Seized)
When no pronouncement of confiscation is made in regard to the docu- ments or articles seized, such documents or articles shall be
deemed to
have been released from seizure.
Article 333 (Returning of Property, Obtained though Crimes against
Property, under Seizure)
(1) If, in regard to property, obtained though crimes against property and under seizure, there is a clear reason for restoration
of such goods
to the injured party, pronouncement of returning shall be made only by
judgment.
(2) In the case of the preceding paragraph, a pronouncement directing the delivery of any article acquired as consideration for the
property obtained though crimes against property to the injured party shall be
made by a judgment when such property have been disposed of.
(3) When no special pronouncement is made to the contrary in regard to goods provisionally restored, pronouncement of restoration
shall be
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deemed to have been made.
(4) Notwithstanding the provisions of the preceding three paragraphs, any person interested may assert his right to such goods in
accordance with civil procedure.
Article 334 (Judgment of Provisional Payment)
(1) When a court pronounces a fine, minor fine or additional collection on a defendant, the court may, upon request of a public
prosecutor or ex officio, order the provisional payment of such money, if it is consi-
dered there is apprehension that it will be impossible or difficult to ex- ecute the judgment after the judgment becomes finally
binding.
(2) The decision mentioned in the preceding paragraph may be pro-
nounced by a judgment simultaneously with the pronouncement of pen- alty.
(3) The decision mentioned in the preceding paragraph may be executed
immediately.
Article 335 (Procedure for Rescission of Suspension of Execution)
(1) In cases where a pronouncement suspending execution of a punish- ment is to be rescinded, the public prosecutor shall demand
such re- scission in a court which has the jurisdiction in the area where the de-
fendant is or last resided.
(2) When the demand mentioned in the preceding paragraph has been made, a court shall render a ruling after hearing the opinion of
the de-
fendant or his proxy.
(3) Against the ruling under the preceding paragraph, an immediate appeal to the High Court may be filed.
(4) The provisions of the preceding two paragraphs shall apply mutatis
mutandis to cases involving suspended punishment.
Article 336 (Procedure to be Determined in Concurrent Crime)
(1) In cases where a penalty is to be determined in accordance with Article 36, 39 (4) or 61 of the Criminal Act, a public prosecutor
shall demand the court which rendered the final judgment upon the case to
determine the penalty: Provided, That when a suspended pronounce-
ment of punishment is to be revoked in accordance with Article 61 of the
Criminal Act, it shall be in accordance with Article 323 and the reason for revocation of suspension of pronouncement shall be
clearly stated.
<Amended by Act No. 8496, Jun. 1, 2007>
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(2) The provisions of paragraph (2) of the preceding Article shall apply
mutatis mutandis to the preceding paragraph.
Article 337 (Judgment of Extinction of Punishment)
(1) As to the pronouncement referred to in Article 81 or 82 of the Crim- inal Act, the application shall be made to the court corresponding to the public prosecutor s office in which the criminal records are filed. <Amended
by Act No. 8496, Jun. 1, 2007>
(2) The pronouncement referred to in the preceding paragraph, shall be made by means of a ruling.
(3) Against the ruling of dismissing the request mentioned in para-
graph (1), immediate appeal to the High Court may be filed.
PART Ⅲ APPEALS
CHAPTER Ⅰ COMMON PROVISIONS
Article 338 (Person Entitled to Lodge Appeal)
(1) An appeal may be lodged by a public prosecutor or the defendant. (2) Deleted. <by Act No. 8730, Dec. 21, 2007>
Article 339 (Persons Entitled to Lodge Appeal against Ruling)
Appeal on a ruling to the High Court may be filed by a person other than a public prosecutor or the defendant against
whom a ruling has
been rendered.
Article 340 (Appeal Lodged by Person Other than Parties)
The legal representative of a defendant may lodge an appeal on behalf of the defendant.
Article 341 (Idem)
(1) The spouse, a lineal relative, a sibling, or the attorney in fact or the defense counsel of a defendant in the original court may lodge an ap- peal on behalf of the defendant. <Amended by Act No. 7427, Mar. 31, 2005> (2) Appeal mentioned in the preceding paragraph shall not be taken against the clearly expressed intention of the defendant.
Article 342 (Appeal against Part of Decision)
(1) An appeal may be filed against a part of decision.
(2) An appeal which is taken against one part shall be deemed to have
effect over the other part which is indispensably connected with that part.
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Article 343 (Period of Appeal)
(1) An appeal shall be made in writing within the prescribed period. (2) The period for making an appeal shall begin to run from the day on which the decision was pronounced or known.
Article 344 (Special Regulation for Person in Prison or Detention House) (1) A written application for an appeal submitted by the defendant who is in a prison or detention house, to the warden of the prison or deten- tion house or his deputy is regarded as appealed within the prescribed period. <Amended by Act No. 1500, Dec. 13, 1963>
(2) If the defendant is unable to prepare a written application himself in cases of the preceding paragraph, the warden of a prison
or detention
house shall cause a public official under his jurisdiction to do so. <Amended
by Act No. 1500, Dec. 13, 1963>
Article 345 (Persons Entitled to Application for Appeal)
When a person entitled to make an appeal under Articles 338 through
341 has been prevented, by a cause not imputable to himself or his rep- resentative, from lodging an appeal within the period for
making an appeal, he may apply for recovery of his right to appeal.
Article 346 (Form of Application for Recovery of Right of Appeal)
(1) Demand for recovery of the right of appeal shall be submitted to the original court in writing, within a period equivalent
to the period for
making an appeal from the day the cause which prevented the appeal
ceased to exist.
(2) The reason for demanding recovery of the right of appeal shall be accompanied by an offer of presumptive proof.
(3) A person who demands recovery of the right of appeal shall make an
application for appeal simultaneously with such demand.
Article 347 (Immediate Appeal for Recovery of Right of Appeal)
(1) The court which has received an application for recovery of right of appeal shall render a ruling over whether application
is accepted or not.
(2) An immediate appeal may be filed against the ruling under the preceding paragraph.
Article 348 (Application for Recovery of Appeal and Suspension of Ex- ecution)
(1) When application is made for recovery of the right of appeal, the
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court may render a ruling suspending the execution of the decision until
the ruling provided for in the preceding Article is rendered. <Amended by Act No. 8496, Jun. 1, 2007>
(2) In cases where a ruling suspending the execution mentioned in the preceding paragraph is rendered, a warrant of detention shall
be issued
against the defendant if it is necessary to detain him: Provided, That
it shall be limited to particulars provided for in Article 70.
Article 349 (Waiver and Withdrawal of Appeal)
A public prosecutor, the defendant or a person mentioned in Article 339 may waive or withdraw an appeal: Provided, That the defendant or a person mentioned in Article 341 cannot waive an appeal in cases where
he is pronounced with death penalty, imprisonment for life or imprison- ment without prison labor for life.
Article 350 (Waiver of Appeal and Consent of Legal Representative)
A defendant who has a legal representative shall obtain the consent of his legal representative before waiving or withdrawing an appeal: Pro- vided, That this shall not apply when such consent cannot be obtained on account of death of his legal representative or for some other reason.
Article 351 (Withdrawal of Appeal and Consent of Defendant)
The legal representative of the defendant or those mentioned in Article
341 may withdraw an appeal in accordance with the consent of the de- fendant.
Article 352 (Method of Waiver of Appeal)
(1) Waiver or withdrawal of an appeal shall be made in writing, but in court it may be done orally.
(2) In the case of waiver or withdrawal of an appeal made orally, it shall be entered on the protocol.
Article 353 (Jurisdiction on Waiver of Appeal)
The waiver or withdrawal of an appeal shall be filed in the original court. But when the record of legal proceedings is not sent to
the appeal court,
the withdrawal of appeal may be submitted to the original court.
Article 354 (Prohibition to Re-appeal after Waiver)
A person who has withdrawn or waived an appeal or has consented to the waiver or withdrawal of an appeal shall not take another appeal in respect to the same case.
Article 355 (Special Regulation for Defendant in Prison)
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The provisions of Article 344 shall apply mutatis mutandis in cases
where the defendant in prison or detention house demands recovery of
his right of appeal, waiver or withdrawal of the appeal. <AmendedbyAct
No. 1500, Dec. 13, 1963>
Article 356 (Waiver, Relinquishment of Appeal and Notice to Party)
If there is a request for an appeal, waiver or withdrawal of an appeal, or a recovery of right of appeal, the court shall inform the other party without delay of the impending action.
CHAPTER Ⅱ APPEAL FROM JUDGMENT BY TRIAL COURT
Article 357 (Judgment Subject to Appeal)
An appeal may be lodged, in cases where the judgment of the court of first instance is not satisfactory, from the judgment of a sole judge of the district court to a collegiate court of the district court and from the judge of a collegiate division of the district court to the High Court.
<Amended by Act No. 1500, Dec. 13, 1963>
[This Article Wholly Amended by Act No. 705, Sep. 1, 1961]
Article 358 (Time-Limit for Appeal)
The period allowed for appeal shall be seven days. <Amended by Act No.
1500, Dec. 13, 1963>
Article 359 (Method of Appeal)
An appeal shall be lodged by a petition brought before the original court.
<Amended by Act No. 1500, Dec. 13, 1963>
Article 360 (Ruling on Dismissal of Appeal by Original Court)
(1) When it is obvious that appeal has been lodged contrary to the legal form or after the termination of the right of appeal, the original court shall dismiss it by means of a ruling. <AmendedbyActNo.1500,Dec.13,1963> (2) An immediate appeal to the High Court may be filed against such ruling under the preceding paragraph.
Article 361 (Delivery of Records of Trial and Real Evidence)
With the exception of Article 360, the original court shall send the re- cords of trial and real evidence to the appeal court within fourteen days after receipt of a petition of appeal.
[This Article Wholly Amended by Act No. 5054, Dec. 29, 1995]
Article 361-2 (Acceptance of Records of Trial and Notification thereof)
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(1) Where the appeal court has accepted the delivery of the records of
the proceedings, both the appellant and the other party shall be imme-
diately notified of the court s action. <AmendedbyActNo.1500,Dec.13,1963>
(2) If a defense counsel has been selected before notification, mentioned
in the preceding paragraph, is made, such notification shall also be
given to the defense counsel.
(3) In cases where the defendant is in prison or detention house, the
public prosecutor in the public prosecutor s office corresponding to the
original court shall transfer the defendant, within fourteen days from
receipt of notification as referred to in paragraph (1), to a prison or de-
tention house located in the vicinity of the appeal court. <Newly Inserted
by Act No. 5054, Dec. 29, 1995>
[This Article Newly Inserted by Act No. 705, Sep. 1, 1961]
Article 361-3 (Statement of Reasons for Appeal and Answer)
(1) The appellant or his defense counsel shall submit a statement of
reasons for the appeal to the appeal court within twenty days from the
date of acceptance of the notification mentioned in the preceding Ar- ticle. In this case, Article 344 shall apply mutatis mutandis. <Amended
by Act No. 1500, Dec. 13, 1963; Act No. 8730, Dec. 21, 2007>
(2) The appeal court upon acceptance to the statement of reasons for appeal shall without delay send a duplicate or copy thereof
to the other party. <Amended by Act No. 1500, Dec. 13, 1963>
(3) The other party shall submit an answer to the appeal court within ten days from the date of delivery of the reasons for appeal
mentioned in the preceding paragraph. <Amended by Act No. 1500, Dec. 13, 1963>
(4) The appeal court upon acceptance of the answer shall without delay send a duplicate or copy thereof to the appellant or his defense
counsel.
<Amended by Act No. 1500, Dec. 13, 1963>
[This Article Newly Inserted by Act No. 705, Sep. 1, 1961]
Article 361-4 (Ruling Dismissing Appeal)
(1) If either the appellant or his defense counsel has failed to submit
a statement of reasons for appeal within the period as set forth in para-
graph (1) of the preceding Article, the appeal court shall dismiss the appeal by means of a ruling: Provided,That this provision shall not apply where there exists a fact to be examined exofficio, or when a reason for
appeal is stated on the petition of appeal.
(2) Immediate appeal may be filed against a ruling under the preceding
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paragraph. <Newly Inserted by Act No. 1500, Dec. 13, 1963>
[This Article Newly Inserted by Act No. 705, Sep. 1, 1961]
Article 361-5 (Reasons for Appeal)
The following shall be reasons for an appeal against a judgment in the original instance: <Amended by Act No. 1500, Dec. 13, 1963>
1. When there is a violation of the Constitution of the Republic of Korea,
Acts, Ordinances or regulations which have affected the decision of the court;
2. When the penalty has been abolished or changed or general amnesty
has been proclaimed after the judgment;
3. When the basis for assuming or denying jurisdiction is against the
Acts;
4. When the court which rendered an adjudication was not constituted as prescribed by Acts;
5. and 6. Deleted; <by Act No. 1500, Dec. 13, 1963>
7. When a judge who is not supposed to participate in the trial of a case has participated in the trial;
8. When a judge who did not participate in the trial of case, has partic-
ipated in rendering the judgment;
9. When there has been a violation of the provisions concerning open- ing of public trial to the public;
10. Deleted; <by Act No. 1500, Dec. 13, 1963>
11. When the reason are not included in the judgment or when the rea- son stated is not compatible with judgment;
12. Deleted; <by Act No. 1500, Dec. 13, 1963>
13. When there exist reasons for applying for renewal of procedure;
14. When the judgment is affected by mistake of fact; and
15. When there exists reason to find the amount of punishment sentenced unreasonable.
[This Article Newly Inserted by Act No. 705, Sep. 1, 1961]
Article 362 (Ruling on Dismissal of Appeal)
(1) If the original court does not determine the dismissal of an appeal falling within the provisions of Article 360, the appeal court
shall dis-
miss the appeal by means of a ruling. <AmendedbyActNo.1500,Dec.13,1963>
(2) Immediate appeal to the Supreme Court may be filed against such ruling as referred to in the preceding paragraph.
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Article 363 (Ruling on Dismissal of Public Prosecution)
(1) If a case falls under any of subparagraph of Article 328 (1), the ap- peal court shall dismiss the public prosecution by means of a ruling.
<Amended by Act No. 1500, Dec. 13, 1963; Act No. 5054, Dec. 29, 1995>
(2) Immediate appeal to the Supreme Court may be filed against such ruling as referred to in the preceding paragraph.
Article 364 (Judgment by Appeal Court)
(1) The appeal court shall render a decision exofficioon the grounds in-
cluded in the reason for appeal. <Amended by Act No. 1500, Dec. 13, 1963>
(2) The appeal court may render a decision ex officio on the grounds
which affected a judgment, even if the ground is not included in the rea-
son for appeal. <Amended by Act No. 1500, Dec. 13, 1963>
(3) An evidence which could be an evidence at the court of first instance may be evidence at the court of appeal. <NewlyInsertedbyActNo.1500,Dec.
13, 1963>
(4) An appeal shall be dismissed by means of a judgment when the court decides that no ground for appeal exists.
(5) When it is evident that there exists no ground for appeal, the court
may dismiss an appeal by a judgment, without oral proceedings, by ex- amining the petition of appeal, the statement of reason for
appeal or any other records of proceedings.
(6) The original judgment shall be quashed and a new judgment an- nounced when the court decides that any of the grounds for
appeal are valid.
[This Article Wholly Amended by Act No. 705, Sep. 1, 1961]
Article 364-2 (Quashing Judgment for Co-defendant)
If, in a case where the original judgment is quashed for one defendant, the same reason for quashing exists also with respect
to co-defendant who appealed, the original judgment against the co-defendant shall also
be quashed. <Amended by Act No. 1500, Dec. 13, 1963>
[This Article Newly Inserted by Act No. 705, Sep. 1, 1961]
Article 365 (Presence of Defendant)
(1) If a defendant does not appear on the date set for public trial, an- other date shall be set. <Amended by Act No. 705, Sep. 1, 1961>
(2) A judgment may be pronounced without oral statement of the de-
fendant when the defendant does not appear in the court on the sub-
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sequent date without proper reason.
Article 366 (Return of Case to Original Court)
When the original judgment is to be quashed on the ground that the judgment on dismissal of public prosecution or jurisdictional incompe- tency is contrary to the Acts, the case shall be sent back to the original court by means of a judgment.
Article 367 (Transfer of Case to Competent Court)
When the original judgment is to be quashed on the ground that the basis for jurisdiction is contrary to the Acts, the case shall, by means of a judgment, be transferred to a competent court of first instance: Pro- vided, That if the appeal court has itself jurisdiction of first instance over the case, it shall try the case as court of first instance. <Amended
by Act No. 1500, Dec. 13, 1963>
Article 368 (Prohibition of Judgment Disadvantageous to Defendant) In cases where appeal has been lodged by, or for the benefit of the de- fendant, no penalty more severe than that imposed by the original judg- ment shall be pronounced. <Amended by Act No. 1500, Dec. 13, 1963>
Article 369 (What must be Stated in Text of Appeal Judgment)
The reasons for the decision of the court shall be stated in the text of judgment rendered by the appeal court, and the facts and evidences stated on the original judgment may be quoted in the judgment of the appeal court. <Amended by Act No. 1500, Dec. 13, 1963>
[This Article Wholly Amended by Act No. 705, Sep. 1, 1961]
Article 370 (Applicable Mutatis Mutandis Provisions)
The provisions relating to public trial in Part Ⅱ shall apply mutatis mutandis to trial on appeal, except as otherwise provided in this Chap-
ter. <Amended by Act No. 1500, Dec. 13, 1963>
CHAPTER Ⅲ APPEAL TO SUPREME COURT
Article 371 (Judgment Subject to Appeal)
Re-appeal may be lodged, in cases where the finding of the court of se- cond instance is not satisfactory, to the Supreme Court. <AmendedbyAct No. 1500, Dec. 13, 1963>
[This Article Wholly Amended by Act No. 705, Sep. 1, 1961]
Article 372 (Direct Appeal to Supreme Court from District Court)
In the following cases, appeal may be made directly to the Supreme
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Court without filing appeal to the High Court against judgment in the
first instance: <Amended by Act No. 705, Sep. 1, 1961; Act No. 1500, Dec. 13, 1963>
1. When the court fails to apply Acts and subordinate statutes to facts
which are recognized in the original judgment, or where there is an error in the application of Acts and subordinate statutes;
and
2. When the penalty has been abolished or changed or general amnesty
has been proclaimed subsequent to the rendition of the original judg- ment.
Article 373 (Appeal to High Court and Direct Appeal to Supreme Court from District Court)
An appeal to the Supreme Court against the judgment in first instance
shall lose its effect if an appeal to the High Court is filed: Provided,That
this shall not apply when appeal has been withdrawn or dismissed by
means of a ruling. <Amended by Act No. 1500, Dec. 13, 1963>
Article 374 (Period Allowed for Appeal)
The period allowed for appeal shall be seven days.
Article 375 (Method of Request Appeal)
An appeal shall be lodged by presenting a petition of appeal to the ori- ginal court.
Article 376 (Ruling on Dismissal of Appeal by Original Court)
(1) Where it is obvious that the appeal is made contrary to the legal form or has been filed after the termination of the
right to appeal, the
original court shall dismiss it by means of a ruling.
(2) Immediate appeal may be filed against the ruling as referred to in the preceding paragraph.
Article 377 (Delivery of Records of Trial and Real Evidence)
With the exception of Article 376, the original court shall send the re- cords of trial and real evidence to the Re-appeal Court within
fourteen
days after receipt of a petition of re-appeal.
[This Article Wholly Amended by Act No. 5054, Dec. 29, 1995]
Article 378 (Receiving Records of Trial and Notification)
(1) When the Re-appeal Court receives the record of proceedings, it shall immediately inform the appellant and appellee of the reason.
<Amended by Act No. 705, Sep. 1, 1961>
(2) When a defense counsel is appointed before the notification men- tioned in the preceding paragraph, the court shall
inform the defense
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counsel.
Article 379 (Statement of Reasons of Appeal and Written Answer)
(1) An appellant or defense counsel shall submit a statement of the rea- son for appeal to the Re-appeal Court within twenty days
from the day when he received the notification provided for in the preceding Article.
In this case, Article 344 shall apply mutatismutandis. <Amended by Act
No. 705, Sep. 1, 1961; Act No. 8730, Dec. 21, 2007>
(2) The reason shall be expressed distinctly in the statement for appeal quoting the facts on the basis of the records of trial and
evidence already made and examined by the original court.
(3) The Re-appeal Court which has accepted the statement for re-appeal shall serve a copy or transcript of the statement to the other
party with- out delay. <Amended by Act No. 705, Sep. 1, 1961>
(4) The appellee may submit a written answer to the Re-appeal Court within ten days from the date on which he has been served in accordance
with the preceding paragraph. <Amended by Act No. 705, Sep. 1, 1961>
(5) The Re-appeal Court which has accepted a written answer shall serve a copy or transcript of the statement on the appellant or
defense counsel without delay. <Amended by Act No. 705, Sep. 1, 1961>
Article 380 (Ruling of Dismissal of Appeal)
When appellant or defense counsel does not submit a statement of rea- son for the appeal within the period referred to in paragraph
(1) of the
preceding Article, the court shall dismiss the appeal by means of a rul-
ing: Provided, That this shall not apply when there are reasons entered in the petition of appeal. <Amended by Act No. 705, Sep. 1, 1961>
Article 381 (Ruling of Dismissal of Appeal)
The Re-appeal Court shall dismiss an appeal by means of a ruling when the original court fails to render a ruling dismissing
appeal subject to
the provisions of Article 376. <Amended by Act No. 705, Sep. 1, 1961>
Article 382 (Ruling of Dismissal of Appeal)
An appeal shall be dismissed by means of a ruling, if the provisions of subparagraphs of Article 328 (1) are applicable.
[This Article Wholly Amended by Act No. 5054, Dec. 29, 1995]
Article 383 (Reasons of Appeal)
An appeal may be lodged against a judgment in the original instance ren-
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dered by the High Court for the following grounds: <Amended by Act No.
705, Sep. 1, 1961; Act No. 1500, Dec. 13, 1963>
1. In cases where there has been a violation of the Constitution of the Republic of Korea, Acts, Ordinances or regulations which have af- fected a decision of the court;
2. In cases where punishment is abolished or changed or general am- nesty has been proclaimed after a decision of the court has
been rendered;
3. In cases where there is a reason to request for a review; and
4. Regarding those cases for which punishment of death, a life term or an imprisonment or imprisonment without labor for more
than ten
years has been imposed, when the judgment attached was affected by grave mistake of the fact or when the amount of the punishment
is extremely improper.
Article 384 (Scope of Investigation)
The Re-appeal Court shall investigate all the matters contained in the statement accompanying the appeal: Provided, That in cases of sub- paragraphs 1 through 3 of the preceding Article, the court may render a decision exofficiothereon, even if it is not included in the reasons for re-appeal.
[This Article Wholly Amended by Act No. 1500, Dec. 13, 1963]
Article 385 Deleted. <by Act No. 705, Sep. 1, 1961>
Article 386 (Qualification of Defense Counsel)
For trial on appeal, no person other than an attorney shall be appointed as defense counsel.
Article 387 (Ability of Argument)
In a trial on an appeal, only the defense counsel shall argue on behalf of the defendant.
Article 388 (Form of Argument)
The public prosecutor and the defense counsel shall argue on the basis of the statement of reasons accompanying the appeal.
Article 389 (Absence, etc. of Defense Counsel)
(1) If a defense counsel does not appear, or no defense counsel has been appointed, a judgment may be given after having the oral
statement of a public prosecutor: Provided, That the same shall not apply to the case
of Article 283.
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(2) In the case of the preceding paragraph, when a legitimate statement
of reason is presented, it shall be considered as an oral statement.
Article 389-2 (Summon of Defendant)
It is not necessary for the defendant to be summoned on the date for a trial of re-appeal.
[This Article Newly Inserted by Act No. 5054, Dec. 29, 1995]
Article 390 (Judgment by Examination of Documents)
(1) The Re-appeal Court may render an adjudication, without oral plead- ings, after examining the petition of appeal, the statement
of reasons for reappeal, or any other records of the proceedings.
(2) The Re-appeal Court may, if necessary, hold a hearing for a specific
issue to hear a testimony of a third party involved in the case at bar.
<Newly Inserted by Act No. 8496, Jun. 1, 2007>
[This Article Wholly Amended by Act No. 705, Sep. 1, 1961]
Article 391 (Quashing of Original Judgment)
When there exist reasons for an appeal, the original judgment shall be quashed by means of judgment.
Article 392 (Quashing for Co-Defendant)
In cases where the original judgment for the benefit of a defendant is quashed, such judgment shall also affect a co-defendant by whom an appeal was lodged if the ground for quashing is common to the co-de- fendant.
Article 393 (Dismissal of Public Prosecution and Judgment of Re- turning)
In cases where the original judgment or judgment of the court of first
instance is to be quashed on the ground that an appeal properly filed was dismissed, it shall be sent back to the original
court or the court of first instance by means of a judgment.
Article 394 (Recognition of Jurisdiction and Judgment of Transfer)
In cases where the original judgment or the judgment of the court of first instance is to be quashed on the ground that the basis for jurisdic- tion is contrary to Acts, it shall be transferred to the court of proper jurisdiction by means of a judgment.
Article 395 (Jurisdiction Erroneously Refused)
In cases where the original judgment or the judgment of the court of first instance is to be quashed on the ground that the basis for refus-
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ing jurisdiction is against the Acts, it shall be sent back to the original
court or the court of first instance by means of a judgment.
Article 396 (Judgment of Quashing)
(1) In cases where the original judgment is to be quashed, then the Re- appeal Court may render a judgment on the basis of the record
and evi-
dence already made and examined by the original court or the court of
first instance and may render a direct judgment on the case. <Amended by Act No. 705, Sep. 1, 1961>
(2) The provisions of Article 368 shall apply mutatis mutandis to the
judgment provided for in the preceding paragraph.
Article 397 (Return or Transfer to Original Court)
When the original judgment is quashed on grounds other than the pre- ceding four Articles, the case either shall be sent back
to the original
court, or transferred to another court of similar jurisdiction, by means
of a judgment.
Article 398 (Form of Entry of Decision of Document)
The reason for judgment concerning appeal shall be written in the state- ment of decision. <Amended by Act No. 705, Sep. 1, 1961>
Article 399 (Applicable Provisions)
The provisions of the preceding Chapter shall apply mutatis mutandis
to the trial of appeal, except as otherwise provided in this Chapter.
Article 400 (Request for Amendment of Judgment)
(1) The Re-appeal Court, where it notes any error in the content of its judgment, may ex officio amend it by a judgment upon request of the public prosecutor, the appellant or the defense counsel. <AmendedbyAct
No. 705, Sep. 1, 1961>
(2) The request mentioned in the preceding paragraph shall be made within ten days after the day when the judgment has been pronounced. (3) The request mentioned in paragraph (1) shall be made in writing to- gether with the reason therefor.
Article 401 (Judgment for Amendment)
(1) A judgment for amendment may be rendered without opening oral proceedings.
(2) The court of an appeal shall reject a request, by means of a ruling,
without delay when the request for amendment is not favorably consid- ered.
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CHAPTER Ⅳ APPEAL FROM RULING
Article 402 (Judgment Subject to Appeal)
Against a ruling of a court, an appeal may, if there is any objection, be made: Provided, That this shall not apply in cases where it is specially provided in this Act.
Article 403 (Appeal from Ruling Prior to Judgment)
(1) Against a ruling rendered, prior to the judgment, concerning the ju- risdiction of a court or the proceedings, no appeal shall
be made except
in cases where it is specially provided in this Act.
(2) The provisions of the preceding paragraph shall not apply to a ruling relating to detention, release on bail, seizure or restoration
of articles
seized or a ruling relating to confinement of the defendant in connection
with examination by expert witnesses.
Article 404 (Time to File Ordinary Appeal)
With the exception of immediate appeal, appeal may be made at any time: Provided, That this shall not apply when it is no longer of advan- tage to have the original ruling cancelled. <AmendedbyActNo.1500,Dec.13,
1963>
Article 405 (Period Allowed for Immediate Appeal)
The period allowed for immediate appeal shall be three days.
Article 406 (Procedure of Appeal)
An appeal shall be filed by presenting a written application to the origi- nal court.
Article 407 (Ruling of Dismissal of Appeal by Original Court)
(1) In cases where it is obvious that the application for appeal is con- trary to the form prescribed by Acts or it is filed after
the termination
of the right of appeal, the original court shall dismiss it by means of a ruling.
(2) An immediate appeal may be filed against the ruling of the preced-
ing paragraph.
Article 408 (Ruling of Renewal by Original Court)
(1) In cases where the original court finds appeal to be well-founded, it shall correct the error in the ruling.
(2) Where the whole or a part of an appeal is groundless, the court shall
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send the written application with its written opinions attached thereto
to the court of appeal within three days from the day when it received the application.
Article 409 (Suspension of Execution and Ordinary Appeal)
With the exception of immediate appeal, appeal shall not have the effect of suspending the execution of the decision: Provided, That the original court or the court of appeal may, by means of a ruling, suspend the exe-
cution until the appeal shall have been adjudicated.
Article 410 (Immediate Appeal and Effect of Suspension of Execution) During the period allowed for immediate appeal or after it is made, the execution of the decision shall be suspended.
Article 411 (Delivery of Records of Proceedings)
(1) The original court shall, if deemed necessary, send the records of proceedings and articles of evidence to the court of
appeal.
(2) The court of appeal may demand the records of proceedings and arti-
cles of evidence.
(3) In the cases of the preceding two paragraphs, the court of appeal shall inform the parties within five days from the day the records
of proceed-
ings and articles of evidence are received.
Article 412 (Statement by Public Prosecutor)
The public prosecutor may state his opinion regarding an appeal.
Article 413 (Ruling of Dismissal of Appeal)
In cases where the original court does not dismiss an appeal which falls under the provisions of Article 407, the court of appeal shall dismiss it by means of a ruling.
Article 414 (Dismissal of Appeal and Recognition of Reasons for Appeal) (1) In cases where the appeal is found to be groundless, it shall be dis- missed by means of a ruling.
(2) If the appeal is well-founded, the original ruling shall be cancelled by ruling and, if necessary, a decision against the case of appeal shall be rendered anew.
Article 415 (Re-Appeal)
Against a ruling rendered by the court of appeal or the High Court, an immediate appeal may be lodged to the Supreme Court only on the
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ground that there has been a violation of the Constitution of the Re-
public of Korea, Acts, Ordinances or regulations which have affected the decision of the court.
[This Article Wholly Amended by Act No. 1500, Dec. 13, 1963]
Article 416 (Quasi-Appeal)
(1) A person who has an objection against a ruling rendered by the pre- siding judge or a commissioned judge which falls under any
of the fol- lowing subparagraphs may demand cancellation or alteration of it to the court to which the judge belongs:
1. A ruling dismissing a motion for challenge;
2. A ruling relating to confinement, release on bail, seizure or resto- ration of articles seized;
3. A ruling ordering confinement for the purpose of examination by ex- pert witnesses; and
4. A ruling ordering fine for negligence or compensation for expenses to a witness, expert witness, interpreter, or translator.
(2) A ruling requested in relation to the above paragraphs shall be ren- dered by the collegiate court.
(3) The demand mentioned in paragraph (1) shall be made within three days after the date on which the notification for ruling
is made.
(4) The execution of a ruling provided in paragraph (1) 4 shall be sus- pended during the period specified in the preceding paragraph
and dur- ing which a demand is made.
Article 417 (Idem)
A person who is dissatisfied with a disposition made by a public prose- cutor or a judicial police officer concerning confinement, seizure or re- turn of a seized article and a disposition concerning participation of the defense counsel under Article 243-2, may file a petition for cancellation or alteration of such disposition with the court having jurisdiction over the place of execution of such disposition or the court corresponding to the public prosecutor s office to which the public prosecutor belongs.
<Amended by Act No. 8496, Jun. 1, 2007; Act No. 8730, Dec. 21, 2007>
Article 418 (Form of Quasi-Appeal)
The demand provided in the preceding two Articles shall be made by pres-
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enting a written application to the competent court.
Article 419 (Applicable Provisions)
The provisions of Articles 409, 413, 414 and 415 shall apply mutatis mutandis to cases arising under Article 416 or 417. <Amended by Act No.
5054, Dec. 29, 1995>
PART Ⅳ SPECIAL PROCEEDINGS OF TRIAL
CHAPTER Ⅰ REOPENING OF PROCEDURE
Article 420 (Reopening of Procedure)
A request for reopening of procedure may be made for the benefit of a person against whom a judgment of guilty has become finally
binding, in the following cases:
1. When documentary evidence or articles of evidence, on which the original judgment was based, have been proved by another finally
binding judgment to have been forged or altered;
2. When testimony, expert opinion, interpretation or translation on which the original judgment was based, has been proved by another
finally binding judgment to be false;
3. When the offense of false accusation committed against a person pro- nounced guilty has been proved by another final judgment;
4. When the decision on which the original judgment was based has been
altered by another final decision;
5. When clear evidence has been newly discovered that in regard to a person pronounced guilty, a judgment of not guilty or acquittal
should be pronounced, or in the case of a person condemned, a judgment of remission of a penalty should be pronounced, or a lighter
offense than that found by the original judgment should be given;
6. When, in a case in which a judgment of guilty has been rendered
for the offense of infringing a copyright, a patent right, a utility model right, a design right or a trademark right, a final decision
of the Korea Industrial Property Office holding such right to be void has been made or a judgment of a court has been rendered to
the same effect; and
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7. When it is proved by a final judgment that an offense had been committed
in connection with official functions by a judge who participated in the decision by the original court or the court below, or in
the inquiry
which formed the basis of the original judgment, or by a public prosecutor or judicial police officer who participated in
the institution
of a public prosecution or in the investigation which formed the basis
of the public prosecution: Provided,That in case that public prosecution
was instituted against such judge, public prosecutor or judicial police officer prior to the rendition of the original judgment, this
shall apply
only when the court which rendered the original judgement was unaware such facts.
Article 421 (Reopening of Procedure)
(1) A request for reopening of procedure may be made against a final judgment by which appeal or appeal was rendered for a cause specified in subparagraph 1, 2 or 7 of the preceding Article. <Amended by Act No.
1500, Dec. 13, 1963>
(2) After a judgment to reopen procedure has been rendered in a case in which reopening of procedure against a final judgment in
first instance was requested, reopening of procedure shall not be requested against a judgment dismissing an appeal. <Amended by Act No. 1500, Dec. 13, 1963>
(3) After a judgment for reopening of procedure has been rendered in a case in which reopening of procedure against a final judgment
in the first or second instance was requested, reopening of procedure shall not be
requested against a judgment dismissing the appeal.
Article 422 (Evidence in Finally Binding Judgment)
When it is impossible to get a final judgment as proof of an offense in accordance with the preceding two Articles, then if it appears that such a final judgment should be made, the court may grant a request for reopening of procedure on proof of such facts: Provided, That this shall not apply to a case in which final judgment is prevented by lack of evidence.
Article 423 (Jurisdiction over Reopening of Procedure)
A request for reopening of procedure shall be made in the jurisdiction of the court which has rendered the original judgment.
Article 424 (Persons Entitled to Request Reopening Procedure)
Following person may request reopening of procedure:
1. A public prosecutor;
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2. A person who has been pronounced guilty;
3. The legal representative of a person who has been pronounced guilty;
and
4. The spouse or lineal relative or brother or sister of person pronounced guilty if the latter dies or is in a state of unsound
mind.
Article 425 (Reopening of Procedure to be Requested only by Public Pros- ecutor)
A request for reopening of procedure for the causes specified in sub-
paragraph 7 of Article 420, may be made only by a public prosecutor if the offense was instigated by the person who has been pronounced
guilty .
Article 426 (Selection of Defense Counsel)
(1) When a person other than a public prosecutor requests reopening of procedure, he may select a defense counsel.
(2) The selection of defense counsel under the provisions of the preceding paragraph shall remain valid until a judgment is rendered
on the reopening
of procedure.
Article 427 (Time to Request Reopening of Procedure)
Reopening of procedure may be requested even after execution of the penalty has been completed or where the penalty is not to be executed.
Article 428 (Reopening of Procedure and Effect of Suspension of Execution) Request for reopening of procedure shall not have the effect of staying the execution of the penalty: Provided,That a public prosecutor of a public prosecutor s office corresponding to the competent court may stay the ex- ecution of the penalty
until a decision is rendered in regard to the request for reopening of procedure.
Article 429 (Withdrawal of Request for Reopening of Procedure)
(1) Request for reopening of procedure may be withdrawn.
(2) A person who has withdrawn a request for reopening of procedure
shall not again request reopening of procedure for the same cause.
Article 430 (Special Regulation)
The provisions of Article 344 shall apply mutatismutandis to a request
for reopening of procedure and the withdrawal thereof.
Article 431 (Investigation of Fact)
(1) On receipt of a request for reopening of procedure, a court may, if necessary, order a member of the collegiate court to conduct an investigation of facts relating to the request or may requisition a judge of another court,
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to undertake it.
(2) In the case of the preceding paragraph, a commissioned judge of a requisitioned judge shall have the same power as a court or
a presiding
judge.
Article 432 (Ruling for Reopening of Procedure and Opening of Party) Before the court renders a ruling on a request for reopening of procedure, it shall hear the opinion of the applicant and the other
party: Provided, That in case a request is made by the legal representative of a person who has been pronounced guilty , the court shall hear
the opinion of such person.
Article 433 (Ruling of Dismissal of Request)
When it is obvious that a request for reopening of procedure has been made contrary to the form prescribed by Acts or subsequent to the ter- mination of the right to make such request, it shall be dismissed by means of a ruling.
Article 434 (Ruling of Dismissal of Request)
(1) When a request for reopening of procedure is considered to be without grounds, it shall be dismissed by means of a ruling.
(2) After the ruling mentioned in the preceding paragraph has been rendered, reopening of procedure may not again be requested for
the same
cause by any person. <Amended by Act No. 5054, Dec. 29, 1995>
Article 435 (Ruling for Commencing Reopening of Procedure)
(1) When a request for reopening of procedure is considered to be well- founded, a ruling for commencing reopening of procedure shall be rendered. (2) When a ruling for commencing reopening of procedure has been rendered, the execution of the penalty shall be stayed by means of a ruling.
Article 436 (Concurrence of Request and Ruling of Dismissal of Request) (1) If a motion for reopening of procedure has been requested in respect to final judgment dismissing appeal and also to a judgment of first instance which has become final by the above judgment, then if the court of first instance renders a judgment for reopening of procedure, the court of appeal shall, by means of a ruling, dismiss the request for reopening of procedure.
(2) When, in case reopening of procedure has been requested in respect to a final judgment dismissing appeal against the judgment in first or second instance and to a judgment of first or second instance which has
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become finally binding by the above judgment, the court of first or second
instance has rendered a judgment to the reopening procedure, the court of appeal shall, by means of a ruling, dismiss the request
for reopening of procedure.
[This Article Wholly Amended by Act No. 1500, Dec. 13, 1963]
Article 437 (Immediate Appeal)
Immediate appeal may be made against the rulings mentioned in Articles
433, 434 (1), 435 (1) and 436 (1).
Article 438 (Judgment for Reopening of Procedure)
(1) In a case in which a ruling for commencing reopening of procedure has become final, a court shall, except in the case of Article
436, conduct a trial de novo according to its grade.
(2) The provisions of Article 306 (1) and Article 328 (1) 2, however, shall not apply to the trial mentioned in the preceding paragraph
in the following cases:
1. When a request for reopening of procedure has been made on behalf of a deceased person or a person who is in a state of unsound
mind with no hope of recovery; and
2. When a person who has been pronounced guilty has, prior to a judgment being rendered in the reopening of procedure, died or fallen
into a state of unsound mind from which there is no hope of recovery.
(3) In the case of the preceding paragraph, trial may be held without
the appearance of the defendant: Provided, That it shall not be held if
his defense counsel does not appear.
(4) If, in the case of the preceding two paragraphs, the person who has requested reopening of procedure does not select a defense
counsel, a
presiding judge shall, ex officio, assign a defense counsel.
Article 439 (No Imposition of Heavier Punishment)
In reopening of procedure, no penalty heavier than that pronounced in the original judgment shall be imposed.
Article 440 (Notification of Judgment Not Guilty )
When a pronouncement of not guilty has been made after reopening of procedure, such judgment shall be published in the Gazette and newspaper at the seat of the court.
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CHAPTER Ⅱ EXTRAORDINARY APPEAL
Article 441 (Reasons for Extraordinary Appeal)
When it has been discovered after a judgment has become binding that the trial or judgment of the case was in violation of Acts and subordinate statutes, the Prosecutor General may lodge an extraordinary appeal in the Supreme Court.
Article 442 (Form of Extraordinary Appeal)
In making an extraordinary appeal, a written application stating reasons thereof shall be presented to the Supreme Court.
Article 443 (Date for Public Trial)
A public prosecutor shall argue on the basis of the written application on the date for public trial.
Article 444 (Sphere of Investigation and Investigation of Facts)
(1) The Supreme court shall investigate only those matters which are stated in the written application for the extraordinary
appeal.
(2) The Supreme Court may examine facts as to the jurisdiction of the original court, the acceptance of the public prosecution and
the procedure
of the case.
(3) In the case of the preceding paragraph, the provisions of Article 431 shall be applicable.
Article 445 (Judgment of Dismissal)
When an extraordinary appeal is groundless, it shall be dismissed by a judgment.
Article 446 (Judgment of Quashing)
When an extraordinary appeal is considered to be well-grounded, a judgment shall be rendered according to the following categories:
1. When the original judgment is in violation of Acts and subordinate
statutes, the part in violation shall be quashed; Provided, That if the
original judgment was disadvantageous to the defendant, it shall be quashed and a judgment rendered anew in the case; and
2. When any procedure of the original judgment is in violation of Acts and subordinate statutes, the procedure in violation shall
be quashed.
Article 447 (Effect of Judgment)
With the exception of a judgment rendered under the proviso of sub-
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paragraph 1 of the preceding Article, the effect of a judgment in ex-
traordinary appeal shall not extend to the defendant.
CHAPTER Ⅲ SUMMARY PROCEDURE
Article 448 (Issuance of Summary Order)
(1) In a matter coming within its jurisdiction, a district court may, on a public prosecutor s demand, impose a fine, minor fine or
confiscation upon the defendant by a summary order without ordinary proceedings of trial.
(2) In the case of the preceding paragraph, additional collections and other accessory dispositions may be effected.
Article 449 (Demand for Summary Order)
Demand for summary order shall be made in writing simultaneously with the institution of public prosecution.
Article 450 (Ordinary Adjudication)
If it is considered that a case does not admit of a summary order being issued or that it is not proper to do so, trial shall be conducted in accordance with the ordinary proceedings.
Article 451 (Form of Summary Order)
The facts constituting an offense, the Acts and subordinate statutes ap- plicable, the principal penalty and other accessory matter together with a statement that an application for formal trial may be made within seven days from the day of notification of the order shall be clearly stated in the order for summary trial.
Article 452 (Notification of Summary Order)
Notification for summary order shall be made by serving a written order on a public prosecutor and the defendant.
Article 453 (Demand for Formal Trial)
(1) A public prosecutor or the defendant may apply for formal trial within seven days from the day on which he has received notification
of a summary order. A defendant may not waive his right to demand formal trial. (2) An application for formal trial shall
be made in writing to the court which has issued the summary order.
(3) When an application for formal trial has been made, the court shall
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promptly notify the fact to the public prosecutor or the defendant.
Article 454 (Withdrawal of Demand for Formal Trial)
An application for formal trial may be withdrawn prior to the rendering of a judgment in first instance.
Article 455 (Ruling of Dismissal)
(1) In the event an application for formal trial is made contrary to Acts and subordinate statutes or subsequent to the termination
of the claim, it shall be dismissed by means of a ruling.
(2) Against such a ruling immediate appeal may be made.
(3) Where an application for formal trial is considered legal, a trial shall be conducted in accordance with the ordinary proceedings
of trial.
Article 456 (Nullification of Summary Trial)
When a judgment is given on an application for formal trial, the summary order shall lose its effect.
Article 457 (Effect of Summary Trial)
A summary order shall acquire the same effect as an irrevocable judgment upon the lapse of period for application for formal trial or upon the withdrawal of such application or upon the ruling dismissing the ap- plication.
Article 457-2 (Prohibition of Judgment Disadvantageous to Defendant) In a case where a formal trial is demanded, no penalty more severe than that imposed by the summary order shall be pronounced.
[This Article Newly Inserted by Act No. 5054, Dec. 29, 1995]
Article 458 (Applicable Mutatis Mutandis Provisions)
(1) The provisions of Articles 340 through 342, 345 through 352, and
354 shall apply mutatis mutandis to applications for formal trial or
withdrawal thereof.
(2) The provisions of Article 365 shall apply mutatismutandisto the cases,
where the defendant who has applied a formal trial does not appear on the date for the formal trial. <Newly Inserted by Act No. 5054, Dec. 29, 1995>
PART Ⅴ EXECUTION OF DECISION
Article 459 (Final Binding and Execution of Trial)
Except as otherwise provided in this Act, a decision shall be executed
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after it has become final.
Article 460 (Conduct of Execution)
(1) The execution of decision shall be directed by a public prosecutor of the public prosecutor s office corresponding to the court
which rendered such decision: Provided, That this shall not apply to a trial of such na- ture that it should be directed by a court or a judge.
(2) In cases where a decision of an inferior court is to be executed as the result of a decision on appeal or of the withdrawal
of an appeal, a
public prosecutor of the public prosecutor s office corresponding to the court of appeal shall direct its execution: Provided, That if the records of the case are in the inferior court or a public prosecutor s office cor- responding to the court, the public
prosecutor of such public prosecutor s office shall direct the execution of the decision.
Article 461 (Method of Conduct of Execution)
The execution of decision shall be directed in writing accompanied by a
copy of, or an extract from the document of decision or the protocol con-
taining the decision: Provided, That the direction, unless it is for the
execution of a penalty, may also be given by affixing a seal and initials
to original or a copy of or an extract from the document of decision, or
a copy of or an extract from the protocol.
Article 462 (Order of Execution of Penalty)
In cases where there are two or more principal penalties other than
deprivation of qualification, suspension of qualification, fine, minor fine,
and confiscation, the heaviest penalty shall be executed first: Provided,
That a public prosecutor may stay execution of the heavier penalty and
cause the lesser penalty to be executed, with the permission of the Min-
ister of Justice.
Article 463 (Execution of Death Penalty)
Death penalty shall be executed by an order of the Minister of Justice.
Article 464 (Final Judgment of Death and Submission of Records of
Proceedings)
When the judgment which has pronounced death penalty is final, the pub-
lic prosecutor shall submit the records of proceedings to the Minister of
Justice without delay.
Article 465 (Time to Order Execution of Death Penalty)
(1) The order to execute death penalty shall be given within six months
from the day when a judgment becomes final.
(2) In cases where a request for the recovery of right of appeal or for
reopening of procedure or application for an extraordinary appeal has
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been made, the time for completion of such procedure shall not be cal-
culated in the period of six months.
Article 466 (Period of Execution of Death Penalty)
In the event of the Minister of Justice having ordered the execution of
death penalty, such execution shall be carried out within five days.
Article 467 (Presence in Execution of Death Penalty)
(1) Death penalty shall be executed in the presence of the public pro-
secutor, a secretary of a public prosecutor s office and the warden of a
prison or the warden of a detention house or his representative.
(2) No person shall enter the place of execution except with the permis-
sion of a public prosecutor or the warden of a prison or the warden of
a detention house.
[This Article Wholly Amended by Act No. 1500, Dec. 13, 1963]
Article 468 (Protocol of Execution of Death Penalty)
A secretary of a public prosecutor s office who attends the execution of
death penalty shall make an account of the execution, on which he shall
print his name and affix his seal or write his signature jointly with the
public prosecutor and the warden of prison or warden of detention house
or his representative. <AmendedbyActNo.1500,Dec.13,1963;ActNo.8496,Jun.
1, 2007>
Article 469 (Suspension of Death Penalty)
(1) If a person condemned to death is in a state of unsound mind or a
woman condemned to death is pregnant, the execution shall be stayed
by order of the Minister of Justice.
(2) In cases where the execution of death penalty has been stayed under
the provisions of the preceding paragraph, the penalty shall be executed
by order of the Minister of Justice subsequent to recovery from state of
unsound mind or after childbirth.
Article 470 (Suspension of Execution of Punishment Other than Death
Penalty)
(1) If a person condemned to imprisonment, imprisonment without pri-
son labor or disciplinary lockup is in a state of unsound mind, the exe-
cution shall be stayed until his recovery, subject to the direction of a
public prosecutor of the public prosecutor s office corresponding to the
court which pronounced the penalty or of a public prosecutor of the pub-
lic prosecutor s office having jurisdiction over the place where the con-
demned is situated.
(2) In cases where the execution of penalty has been stayed in accor-
dance with the preceding paragraph, a public prosecutor shall deliver the
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condemned to the person who is bound to guard and protect him or to
the head of the local public authorities and cause him to be placed in
a hospital or other suitable place.
(3) A person for whom the execution of a penalty has been stayed shall
be detained in prison or detention house until the disposition provided
for in the preceding paragraph has been effected, and the period of such
detention shall be included in the term of the penalty. <Amended by Act
No. 1500, Dec. 13, 1963>
Article 471 (Idem)
(1) The execution of imprisonment, imprisonment without prison labor
or disciplinary lockup may be stayed in the following cases, subject to
the direction of a public prosecutor of the public prosecutor s office
corresponding to the court which has pronounced the penalty or of a
public prosecutor of the public prosecutor s office having jurisdiction
over the place where the condemned is situated: <AmendedbyActNo.8730,
Dec. 21, 2007>
1. If the health of the condemned will be seriously impaired as a result of the execution of penalty or there is apprehension that
the con- demned will not survive it;
2. If the condemned is seventy years of age or over;
3. If the condemned is in the sixth month of pregnancy or more;
4. If sixty days have not elapsed after the condemned was delivered of
a child;
5. If the lineal ascendants of the condemned are seventy years of age
or over, or disabled or seriously ill, and there is no relative to look
after them;
6. If the lineal descendants of the condemned are in their infancy and
there is no relative to look after them; and
7. If there is any other valid reason.
(2) The public prosecutor shall obtain permission of the Chief Public Pros-
ecutor of the High Public Prosecutor s Office or the chief public prosecu-
tor of the district public prosecutor s office to which he belongs in mat-
ters pertaining to the preceding paragraph. <Amended by Act No. 7078, Jan.
20, 2004; Act No. 8496, Jun. 1, 2007>
Article 472 (Suspension of Execution of Costs of Trial)
The execution of the decision ordering the costs of trial to be borne
shall be stayed within the period allowed for making the request pro-
vided by Article 487, or, in cases where such request has been made,
until a decision thereon becomes finally binding.
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Article 473 (Summon for Execution)
(1) If a person condemned to death, imprisonment, imprisonment with-
out prison labor or disciplinary lockup is not under confinement, a public
prosecutor shall summon him for the purpose of the execution of pen-
alty.
(2) If he fails to appear in response to the summons, a public prosecutor
shall arrest him by issuing a warrant of execution of penalty. <Amended
by Act No. 2450, Jan. 25, 1973>
(3) In the case of paragraph (1), if any person who has been sentenced to a penalty flees or it is afraid that they may flee or his whereabouts is unknown, he may be detained by issuing warrants of execution of penalty, without summoning him. <Amended by Act No. 2450, Jan. 25, 1973>
Article 474 (Method and Effect of Warrant of Execution of Penalty)
(1) The warrant of execution of penalty under the preceding Article shall
contain the convicted persons names, addresses, ages, names of penal-
ties, period of penalties and other necessary matters.
(2) The warrant of execution of penalty has the same effect as the war-
rant of detention.
[This Article Wholly Amended by Act No. 2450, Jan. 25, 1973]
Article 475 (Execution of Warrant of Execution of Penalty)
The provisions on detention of the defendant in Chapter Ⅸ of PartⅠ
shall apply mutatis mutandis to execution of warrant of execution of
penalty under the preceding two Articles.
[This Article Wholly Amended by Act No. 2450, Jan. 25, 1973]
Article 476 (Execution of Penalty concerning Qualification)
The name of the person who has been sentenced to deprivation of
qualifications or suspension of qualification shall be entered in original
list of sentenced persons and a copy shall be served without delay on the head of the Si (referring to the Si where no Gu is established; herein-
after the same shall apply)/Gu/Eup/Myeon (in the Si which is of the urban and rural complex type, it shall be the head of the Si/Guin case of the Dong area, and the head of the Eup/Myeon in case of the Eup/ Myeon area) in the reference domicile and domicile of the sentenced
person. <Amended by Act No. 4796, Dec. 22, 1994; Act No. 8435, May 17, 2007>
Article 477 (Execution of Penalty concerning Property)
(1) A decision imposing a fine, minor fine, confiscation, additional col-
lection, fine for negligence, the costs of trial, compensation for costs or
provisional payment shall be executed by an order of a public prosecutor.
(2) An order referred to in the preceding paragraph shall have the same
effect as an executed deed of obligation.
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(3) The provisions of execution provided for in the Civil Execution Act shall apply mutatis mutandis in regard to the execution of decisions referred to in paragraph (1): Provided, That the service of the decision is not necessary prior to the execution. <Amended by Act No. 6627, Jan. 26,
2002; Act No. 8496, Jun. 1, 2007>
(4) Notwithstanding paragraph (3), the decision under paragraph (1) may be executed in accordance with the practices of the disposition of default on national tax under the National Tax Collection Act. <NewlyIn-
serted by Act No. 8496, Jun. 1, 2007>
(5) A public prosecutor may conduct such investigation as may be nec- essary for executing the decision under paragraph (1). In such instance, Article 199 (2) shall apply mutatis mutandis. <Newly Inserted by Act No.
8496, Jun. 1, 2007>
Article 478 (Execution for Estate of Inheritance)
Confiscation, or a fine or additional collection imposed under the provi-
sions of Acts and subordinate statutes relating to taxes or government
monopolies, or other imposts may be executed upon the property of suc-
cession in the event the condemned dies after the judgment has become
final.
Article 479 (Execution for Juristic Person after Merger)
If a juristic person has been sentenced to fine, minor fine, confiscation,
additional collection, costs of trial or compensation for costs, then if such
juristic person has been extinguished by merger after the judgment be-
comes final, the penalty may be executed on the juristic person which
continues in existence after the merger or which has been formed by the
merger.
Article 480 (Arrangement of Execution of Provisional Payment of Deten- tion)
If a decision for provisional payment was made in the second instance
subsequent to the execution for decision of provisional payment in the
first instance, such execution shall be applied to the decision in the sec-
ond instance to the extent of the amount of money ordered to be paid
by the decision in the second instance.
Article 481 (Execution of Provisional Payment and Execution of Prin- cipal Punishment)
If a decision of a fine, minor fine or additional collection has become final
after the execution of decision of provisional payment, the penalty shall
be deemed to have been executed to the extent of the amount paid.
Article 482 (Calculation in Number of Detention Days, etc. Pending
Judgment after Appeal)
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(1) The whole number of days of detention pending judgment subse- quent to the application for appeal shall be included in the calculation of the regular penalty, in the following cases: <Amended by Act No. 8496,
Jun. 1, 2007>
1. In cases where application for appeal has been made by a public prosecutor; and
2. In cases where application for appeal has been made by a person other than a public prosecutor, and the original judgment
is quashed.
≪Paragraph (2) of this Article is complemented and arranged by Act No. 7225 on October 16, 2004 following the decision of
unconstitution- ality made by the Constitutional Court on July 20, 2000≫
(2) The whole number of days of detention before final and conclusive
judgment during the period for which the application for appeal is filed
(excluding the number of days of detention subsequent to the applica-
tion for appeal) shall be included in the calculation of the regular penalty.
<Newly Inserted by Act No. 7225, Oct. 16, 2004>
(3) Upon dismissing the appeal, the number of days of detention pend- ing the application for appeal during the period for service or immediate appeal shall be entirely included in the sentenced penal term. <NewlyIn-
serted by Act No. 8496, Jun. 1, 2007>
(4) In cases of paragraphs (1) through (3), one day in the number of detention days shall be counted as one day of penal term or one day of detention term of fine or minor fine. <AmendedbyActNo. 2750,Jan. 25,1973;
Act No. 5054, Dec. 29, 1995; Act No. 7225, Oct. 16, 2004; Act No. 8496, Jun. 1, 2007> (5) Detention effected after the court of appeal has quashed the orig- inal judgment before final and conclusive judgment shall be included in the calculation following the example of the number of days of deten- tion during the pendency of the appeal.
Article 483 (Disposition of Goods Confiscated)
Goods which have been confiscated shall be disposed of by a public pros-
ecutor. <Amended by Act No. 5054, Dec. 29, 1995>
Article 484 (Delivery of Goods Confiscated)
(1) If, within three months after the execution of confiscation, delivery
of the goods confiscated is demanded by the person lawfully entitled, a
public prosecutor shall deliver them, with the exception of those which
are to be destroyed or thrown away.
(2) If the demand mentioned in the preceding paragraph is made after
the confiscated goods have been disposed of, a public prosecutor shall
deliver the proceeds realized at the public sale.
Article 485 (Indication of Forgery)
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(1) In cases where an article forged or altered is restored, the whole or forged part of such article shall be indicated.
(2) In cases where the article forged or altered has not been seized, it shall be caused to be produced and the measures specified
in the preced- ing paragraph shall be taken: Provided, That if the article belongs to a public office, the latter shall be notified of the forgery or alteration and advised to take suitable
measures.
Article 486 (Incapable Payment and Notification)
(1) In cases where goods under seizure cannot be restored because the
whereabouts of the person entitled to such restoration is unknown or for
any other reason, a public prosecutor shall give public notice to such
effect in the Official Gazette.
(2) If restoration is not requested in three months from the time of an-
nouncement, the articles shall belong to the National Treasury. <Amended
by Act No. 2450, Jan. 25, 1973>
(3) Even before the end of the period prescribed in the preceding par- agraph, if an article has no value it may be destroyed or if it is difficult to keep it in custody it may be put to a public sale and the price there- from may be kept in custody instead. <AmendedbyActNo.8496,Jun.1,2007>
Article 487 (Application for Exemption of Costs of Trial)
If a person who has been ordered to bear the costs of trial cannot make
full payment because of poverty, he may request the court which ren-
dered the decision ordering such costs to be borne by him to exempt him
from the execution of the decision in respect to the whole or a part of
such costs within ten days from the day when the decision has become
final.
Article 488 (Request for Doubt)
If a person condemned to a penalty has any doubt in regard to the inter-
pretation of the decision, he may request the court which pronounced
the decision for an interpretation.
Article 489 (Request for Objection)
If a person against whom a decision is to be executed, or his legal rep-
resentative or spouse, considers any disposition effected by a public
prosecutor in regard to the execution to be improper, he may raise an
objection to the court which pronounced such decision.
Article 490 (Withdrawal of Requests)
(1) The requests contemplated in the preceding three Articles may be
withdrawn at any time before a ruling is rendered thereon.
(2) The provisions of Article 344 shall apply mutatismutandisto the re-
quests mentioned in the preceding three Articles and to the withdrawal
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thereof.
Article 491 (Immediate Appeal)
(1) In cases where the demand mentioned in the Articles 487 through
489 has been made, the court shall render a ruling on it.
(2) Against the ruling provided for in the preceding paragraph an im-
mediate appeal may be made.
Article 492 (Execution of Detention in Labor House)
As regards the execution of a sentence of detention in the workhouse
because of inability to make full payment of a fine or minor fine, the pro-
visions relating to the execution of penalties shall apply mutatis mu-
tandis.
Article 493 (Costs of Execution to be Charged)
The costs of execution of any of the decision referred to in Article 477
(1) shall be charged to the person, on whom such execution is levied,
and shall be collected simultaneously with the execution in accordance
with the Civil Execution Act. <Amendedby ActNo. 6627, Jan. 26, 2002; Act No.
8496, Jun. 1, 2007>
ADDENDA
Article 1
Those cases in which a public prosecution has been instituted before the
enforcement of this Act shall be governed by the previous Act.
Article 2
Those cases in which a public prosecution has been instituted after the enforcement of this Act shall be governed by this Act:
Provided, That
this shall not affect acts of procedure already taken in accordance with the provisions of the old Act prior to the enforcement
of this Act.
Article 3
The proceedings taken under the old Act before the enforcement of this
Act shall be deemed to have been taken under this Act, if there are
corresponding provisions in this Act.
Article 4
The legal period which has begun to run before the enforcement of this
Act and the period to be added thereto according to the distance between
the residence of a person who is to participate in a trial or the place where
his office is located and the place where a court is located shall be gov-
erned by the old Act.
Article 5
In cases where a person concerned with a case demands, in accordance with
the provisions of Article 45 of this Act, delivery of a copy of or extracts
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of the document of decision or the protocol in which the decision is entered, he shall accompany postal stamp amounting to 50 Hwanper sheet of such copy or extracts.
Article 6
Necessary matter concerning the disposal of those cases which are pending in court at the time of enforcement of this Act, shall be provided by the Supreme Court Regulations, if otherwise provided for in this Act.
Article 7
The fine for negligence provided for in this Act and the amount mentioned in Article 5 of the Addenda in this Act may be increased or decreased by the Supreme Court Regulations according to change of the economic situation.
Article 8
The following decree and ordinances which have been effective before the enforcement of this Act, shall hereby be repealed:
1. The provisions of ChosunCriminal Decree which conflict with this Act;
and
2. The provisions of the United States of America Military Government
in Korea Ordinances which conflict with this Act.
Article 9 (Enforcement Date)
This Act shall enter into force on May 30, 1954.
ADDENDA <Act No. 705, Sep. 1, 1961>
(1) (Transitional Provisions) 1. This Act shall apply to the cases pending in the court at the time of enforcement of this
Act: Provided, That this shall not modify the effect of any procedural acts taken prior to the en- forcement of this Act.
(2) (Enforcement Date) This Act shall enter into force on the date of its promulgation.
ADDENDA <Act No. 1500, Dec. 13, 1963>
(1) This Act shall enter into force on December 17, 1963.
(2) This Act shall apply to the cases pending in the courts at the time of enforcement of this Act: Provided, That this shall not modify the effect of
any procedural acts taken in accordance with the old Act, prior to the
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enforcement of this Act.
(3) As to the cases of appeal pending at the time when this Act enters into force, a statement of reason for appeal may be filed again
up to twenty days
from the date of enforcement of this Act, if the period of filing an appeal has elapsed or a notice of the acceptance of the record
of an appeal case
has been given.
ADDENDA <Act No. 2450, Jan. 25, 1973>
(1) (Enforcement Date) This Act shall enter into force on February 1,1973. (2) (Transitional Measures) This Act shall apply to cases
pending in the courts at the time when this Act enters into force: Provided, That effects of the acts of procedure done pursuant to the old Act shall not be affected by the application of this Act.
(3) (Transitional Measures) As for punishments of person whose crimes were committed before the enforcement of this Act and are punishable
with fine for negligence pursuant to the old Act, the old Act shall apply even after the enforcement of this Act.
(4) (Transitional Measures) With regard to the legal period which began to run before the enforcement of this Act, the old Act shall
apply even after the enforcement of this Act.
(5) (Transitional Measures) The provisions of Article 286-2 shall not apply to those cases against which public prosecutions were
instituted before the enforcement of this Act.
ADDENDUM <Act No. 2653, Dec. 20, 1973>
This Act shall enter into force on the date of its promulgation.
ADDENDUM <Act No. 3282, Dec. 18, 1980>
This Act shall enter into force on the date of its promulgation.
ADDENDA <Act No. 3955, Nov. 28, 1987>
(1) (Enforcement Date) This Act shall be effective on February 25, 1988. (2) (Transitional Measures) This Act shall apply to the cases pending in the court at the time when this Act enters into force: Provided, That the effects of any procedural acts taken pursuant to the old Act shall not be
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affected by the application of this Act.
ADDENDA <Act No. 4796, Dec. 22, 1994>
Article 1 (Enforcement Date)
This Act shall enter into force on January 1, 1995.
Articles 2 through 4 Omitted.
ADDENDA <Act No. 5054, Dec. 29, 1995>
(1) (Enforcement Date) This Act shall enter into force on January 1, 1997: Provided, That the revised provisions of Articles 56-2, 361, 361-2, 377 shall be effective as from the date of promulgation.
(2) (Transitional Measures) This Act shall apply to the cases pending in the courts or public prosecutor s office at the time
when this Act enters into force: Provided, That it shall not modify the effect of any procedural acts taken under the provisions prior to the enforcement of this
Act.
ADDENDA <Act No. 5435, Dec. 13, 1997>
(1) (Enforcement Date) This Act shall enter into force on the date of its promulgation.
(2) (Transitional Measures) This Act shall apply to those who have been
arrested or compulsorily summoned to appear when this Act enters into
force.
ADDENDUM <Act No. 5454, Dec. 13, 1997>
This Act shall enter into force on January 1, 1998. (Proviso Omitted.)
ADDENDA <Act No. 6627, Jan. 26, 2002>
Article 1 (Enforcement Date)
This Act shall enter into force on July 1, 2002.
Articles 2 through 7 Omitted.
ADDENDA <Act No. 7078, Jan. 20, 2004>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation.
Articles 2 and 3 Omitted.
ADDENDUM <Act No. 7225, Oct. 16, 2004>
This Act shall enter into force on the date of its promulgation.
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ADDENDA <Act No. 7427, Mar. 31, 2005>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation: Provided,
That ... <Omitted.> ... the provisions of Article 7 of Addenda (excluding
paragraphs (2) and (29)) shall enter into force on January 1, 2008.
Articles 2 through 7 Omitted.
ADDENDA <Act No. 7965, Jul. 19, 2006>
(1) (Enforcement Date) This Act shall enter into force one month after the date of its promulgation.
(2) (General Transitional Measures) This Act shall apply to any case which
has been investigated, or pending at a court at the time when this Act
enters into force: Provided, That it shall not have effect on any act per-
formed under the previous provisions before the enforcement of this Act.
ADDENDA <Act No. 8435, May 17, 2007>
Article 1 (Enforcement Date)
This Act shall enter into force on January 1, 2008. (Proviso Omitted.)
Articles 2 through 9 Omitted.
ADDENDA <Act No. 8496, Jun. 1, 2007>
Article 1 (Enforcement Date)
This Act shall enter into force on January 1, 2008.
Article 2 (General Transitional Measures)
This Act shall apply the cases under investigation or those pending in a court at the time when this Act enters into force: Provided, That the
effects of an act done under the former provisions enforceable prior to the enforcement of this Act shall remain intact.
Article 3 (Transitional Measures concerning Detention Period)
(1) The amended provision of Article 92 (2) shall be enforceable to the
appeals filed on or after the enforcement date of this Act.
(2) The amended provision of Article 92 (3) shall be enforceable to the
cases of arrest, compulsory appearance, and detention prior to public
prosecution executed on or after the enforcement date of this Act.
Article 4 (Transitional Measures concerning Fine for Negligence)
The amended provisions of Article 151 shall be enforceable to the wit-
nesses who do not make an appearance in compliance with a subpoena
served on or after the enforcement date of this Act.
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제12편 형사법 형사소송법
Article 5 (Transitional Measures concerning Petitions for Adjudication) (1) The amended provisions concerning petitions for adjudication under this Act shall be enforceable to the cases for which non-prosecution is disposed of on or after the enforcement date of this Act, the cases for
which appeal or re-appeal under the Public Prosecutor s Office Act is al- lowed before the enforcement date of this Act, or the cases
for which ap- peal or re-appeal is pending with the High Public Prosecutor s Office or the Supreme Public Prosecutor s Office at
the time when this Act enters into force: Provided, That the foregoing shall not be applicable to a case in which non-prosecution has been already disposed of regarding an identical
criminal fact before the enforcement date of this Act.
(2) The cases for which a petition for adjudication has been filed with the chief public prosecutor of the district public prosecutor
s office or of its branch office before the enforcement date of this Act shall be gov- erned by the former provisions.
(3) Notwithstanding the amended provision of Article 260 (3), the pe- riod of time for filing a petition for adjudication of a case
for which re- appeal with the Supreme Public Prosecutor s Office was allowed before the enforcement date of this Act shall
be no more than ten days from the enforcement date of this Act, while the period of time for filing a pet- ition for adjudication
of a case for which re-appeal is pending with the Supreme Public Prosecutor s Office shall be no more than ten days from the date
on which dismissal of the re-appeal is notified.
Article 6 (Transitional Measures concerning Appeal to Supreme Court) The cases for which appeal or re-appeal has been filed before the en- forcement of this Act shall be governed by the former provisions.
Article 7 Omitted.
ADDENDA <Act No. 8730, Dec. 21, 2007>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation: Provided,
That the amended provisions of Articles 245-2 through 245-4 and 279-
2 through 279-8 shall enter into force one month after the date of its
promulgation, while the amended provisions of Articles 209, 243, and
262-4 (1), 319 (proviso), 338 (2) and 417, and Article 4 of Addenda
shall enter into force on January 1, 2008.
Article 2 (Applicable Examples to Professional Investigative Advisers and Professional Examiners)
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The amended provisions of Articles 245-2 through 245-4 and 279-2
through 279-8 shall apply to the cases under investigation or pending in a court at the time when this Act enters into force.
Article 3 (Transitional Measures concerning Prescriptive Period of
Public Prosecution)
The crimes committed before the enforcement of this Act shall be gov-
erned by the former provisions.
Article 4 Omitted.
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