THE REFORMED CRIMINAL PROCEDURE AFTER DEMOCRATIZATION

Following the constitutional request, the CPC was revised in 1988 and 1995. Many more calls for guaranteeing procedural rights and enhancing efficiency in criminal procedure have been made since the Roh Moo-Hyun government was established on 25 February 2003.

Section III reviews the focal points of the revised Korean criminal proce­dure and important court decisions.

1. The Investigative Authorities

The investigative authorities are composed of two bodies: public prosecutor and police. First, prosecutors are called �supervisor of investigation.’ Article 196 of the CPC provides �police officers shall investigate crimes with direction of pros­ecutors,’ and Article 53 of the Supreme Prosecutors’ Office Act also provides �police officers shall obey the orders issued by prosecutors.’ Prosecutors can not only request police officers to supplement the investigation after the police investigation is completed, but also intervene in the police investigation and stop it to transfer it to them even before it is finished by the police.

Prosecutors retain full authority for both investigation and prosecution in Korea,^[83] under a �principle of monopoly’ (Anklagemonopol).

Prosecutors work under an organizational principle called the �principle of the uniformity of prosecutors’ (Einheit und Unteilbarkeit der Staatsanwaltschaff), which guarantees uniformity and fairness of the inves­tigative and prosecutorial authority. A problem occurs because according to the principle, �prosecutors shall obey the prosecutors in higher office in pros­ecutorial affairs.’^[86] In cases involving powerful politicians or high-ranking government officials, prosecutors in charge had to unwillingly quit their inves­tigation, often facing pressure or persuasion from prosecutors in higher office, and through the Supreme Prosecutor’s Office, the ruling political party has kept a substantial influence on the prosecutors in charge of the cases.^[87] Consequently, public distrust of the prosecution has increased.

Many academics and civic organizations such as �People’s Solidarity for Participatory Democracy’ (PSPD or Chamyeoyeondae)^[88] have strongly requested the principle to be revised, and the request was partly accepted by the Ministry of Justice. In 2004, the Prosecutor’s Office Act was revised to guarantee the protest right of inferior prosecutors against an improper order of the prosecutor in a superior position.^[89]

On the other hand, the �special prosecutor’ system, which is independent of the public prosecutor system, has been introduced several times by the National Assembly for checking politically motivated concealment, distortion, and curtailment of prosecutorial investigations and reinforcing the political neutrality of the prosecutorial authority.

In addition, the shocking incident that a murder suspect was tortured to death by investigative officers with acquiescence of a prosecutor in the Seoul District Branch of the Supreme Prosecutors’ Office in 2002 also casts doubt on the integrity of prosecutors.

Police are a subsidiary organ of the prosecution, lacking independent powers of investigation. They conduct investigations under the direction and supervision of prosecutors.^[91] All the cases investigated by police officers should be concluded by prosecutors except some minor offenses which are punishable by fines of not more than 200,000 won (currently equivalent to about U.S. $190) or detention for less than 30 days. Only these minor cases may be concluded by the chief of police and brought before the court without a formal prosecution.^[92]

The police have attempted to gain more autonomy, but have failed both because prosecutors, who were reluctant to share investigative powers, strongly opposed the change. Although in 2004 the Roh Moo-Hyun govern­ment established a joint committee of the Supreme Prosecutors’ Office and the National Police Agency to reallocate the investigative power between prosecutors and police officers, the committee failed to reach a compro­mise.^[93]

2. Arrest and Detention

A. Reshaped judicial warrant system for custody

The 2007 revision of the CPC adds �the principle of investigation without custody,’ providing: �A suspect should be investigated without custody in prin­ciple.’^[94] It is to give a warning regarding the abuse of the custody of suspects. The CPC provides two types of warrant systems for the custody of persons: arrest warrant and detention warrant.

First, the �arrest warrant’ was introduced by the 1995 revision of the CPC. If there is �probable cause’ to believe that a suspect has committed a crime and will not cooperate with the investigative authorities’ request to come to the police station, the authorities can arrest the suspect with a warrant issued by a judge.^[95] Three exceptions to the warrant requirement are: (i) emergency arrests exceptions,^[96] (ii) flagrant offenders exceptions,^[97] and (iii) semi- flagrant offenders exceptions.^[98]

If suspects have been arrested without a warrant, �without delay’ a prose­cutor should request the issuance of a detention warrant to a judge and a police officer should submit the request for the issuance of the warrant to a prosecu­tor.^[99] A detention warrant should be filed within 48 hours or, if not, the suspect must be released immediately.^[100]

In particular, the emergency arrest has been problematic for the CPC requires that the detention warrant, not the arrest warrant, be filed.

The 2007 revision of the CPC includes a new provision to prevent the abuse of emergency arrest. If prosecutors, without requesting of the issuance of a detention warrant, have released the suspect who was arrested without an arrest warrant, they should report the identity of the suspect, the date and place of the arrest and the reason for the arrest to a court.^[101] Similarly, if police offi­cers, without requesting the issuance of a detention warrant to a prosecutor, have released the suspect who was arrested without an arrest warrant, they should report this release to a prosecutor.^[102]

Secondly, the CPC provides the conventional �detention warrant’ for suspects, which has stricter requirements and longer periods of duration than an arrest warrant. Upon the request of prosecutors,^[103] judges will issue a deten­tion warrant if the suspect or the defendant has no domicile or if there is �probable cause’ to believe that the suspect or defendant may destroy evidence or attempt to escape.^[104]

A detained suspect must be released by the police if he or she is not trans­ferred to the prosecutor within ten days.^[105] At the end of the ten days of deten­tion, the prosecutor may request an additional ten days to a judge before he or she must either prosecute or release the suspect.^[106] In brief, including the 48 hours in case of the warrantless arrest, the investigative authorities have up to 32 days to detain a suspect before filing prosecution.^[107]

B. Mandatory judicial hearing before issuing a detention warrant

To remove the abuse of detention, the 1995 revision of the CPC newly intro­duced the preliminary hearing system for issuing a detention warrant.

The 1995 revision provided that before issuing a detention warrant, a judge, upon his or her own initiative, can schedule a hearing for a �substantial review’ of the necessity of the detention of the suspect, arrested or not.^[108] Because of strong resistance from the investigative authorities, the 1995 hearing system was revised in 1997 to work only upon the request of the suspect or his or her lawyer.^[109] The 1997 revision was criticized as being against Article 9(3) of the International Covenant on Civil and Political Rights,^[110] which the Korean government ratified in April 1990. The Article 9(3) requires a mandatory and immediate preliminary hearing, stipulating that �anyone arrested or detained on a criminal charge shall be brought promptly before a judge.’^[111]

The 2007 revision of CPC makes this judicial hearing mandatory.^[112] The judge who has received a prosecutor’s request for the issuance of a detention warrant should initiate the hearing without delay,^[113] and then should decide whether or not to grant the request. Prosecutors and defense counsel are enti­tled to present their opinions during the hearing.^[114]

C. Strengthened habeas corpus

The CPC also provides habeas corpus for the arrested or detained suspect to review the legality and appropriateness of the arrest or detention.^[115]

Before the revision of CPC in 2007, Article 214-2 of the CPC provided that habeas corpus is available for arrested or detained suspects with a warrant, while Article 12(6) of the Constitution provides that �everyone has a right to request judicial hearing when arrested or detained.’^[116] In the decision of August 27, 1997, however, the Supreme Court held that a suspect arrested without warrant also has a right to request a judicial hearing to review the appropri­ateness of the arrest.^[117] The Court stated that, considering Article 12(6) of the Constitution, Article 214-2 of the CPC must not be interpreted in a way that it deprives the suspect arrested without warrant of the right to habeas corpus.

Following this decision, the 2007 revision removed the terms �with a warrant’^[118] in Article 214-2. Now, all arrested or detained persons, with or without a warrant, have a right to habeas corpus. If the arrested or detained suspect believes that the arrest or detention was illegal or inappropriate, or that there has been a significant change in circumstances, he or she may request the court to examine the legality or appropriateness of the arrest or detention. Within 48 hours of receiving the request, the court should examine the suspect and decide whether to release the suspect.^[119]

In 2004 the Constitutional Court also rendered a significant decision about the right to habeas corpus. The court held the prosecutor’s practice of �blitz prosecution’ (cheonkyeok kiso) was unconstitutional.^[120] Article 214-2 of the CPC provided that the habeas corpus system is available for arrested or detained suspects before prosecution, without mentioning whether or not the system is available for the accused persons after prosecution. Prosecutors often use a procedural tactic of filing a prosecution immediately to remove suspects’ standing for the judicial hearing when suspects request the hearing. The court pointed out that �the blitz prosecution’ is a one-sided action by a prosecutor who has no authority in deciding the constitutional legitimacy of the warrant, so it deprives the suspect who has requested the judicial hearing of �procedural opportunity’ to have his case reviewed by the court.’^[121] Finally, in September 2004, the National Assembly revised the CPC to prohibit �blitz prosecution.’^[122] So the accused persons after prosecution have a right to habeas corpus now.

The habeas corpus outlined in the CPC applies to persons arrested or detained by investigative authorities. Previously, habeas corpus had been not available to the persons under custody of medical facilities, social welfare facilities by administrative authorities or private persons. In 2007, however, the National Assembly passed the Habeas Corpus Act to expand habeas corpus to such persons.^[123] This represented a long-awaited resurrection of Article 10(5) of the 1962 Constitution,^[124] which stipulated the right of habeas corpus in cases where liberty was violated by private persons but was soon omitted in the 1969 revision of the Constitution.

D. Bail

Upon prosecution, the accused has the right to be released on bail.^[125] A request for bail is permitted, except in a number of circumstances prescribed in article 95 of the CPC. The exceptions are as follows: (i) the defendant has committed a crime punishable by capital punishment, life imprisonment or an imprison­ment for more than ten years; (ii) the defendant is a habitual or chronic offender; (iii) there are sufficient grounds to believe that the defendant may destroy evidence; (iv) there are sufficient grounds to believe that the defendant may attempt to escape; (v) the defendant’s domicile is not clear; or (vi) there are sufficient grounds to believe that the defendant may inflict harm on the life, body and property of the victim, possible witness or their relatives.^{[126] [127]} Because of the wide range of exceptions, the right to bail may become fragile.

The 1997 revision of CPC newly established the bail system for suspects who have requested habeas corpus.¹² It is limited because it is not available for suspects who have not requested habeas corpus. It has been criticized in that there cannot be found any reason why the bail system is limited to the suspects who have requested habeas corpus. The basic purpose of bail is different from that of habeas corpus. The former, based on the legal and proper warrant, is to facilitate the reasonable operation of the detention system and to give the suspect the full chance to prepare for a trial. The latter is for judicial control of illegal or improper detention.^[128]

In addition, the court may also permit a release on bail of its own accord regardless of the exceptions in the CPC.^[129]

3. Interrogation

A. Bolstered rights to silence and counsel - Korean version of Miranda and Massiah

In a series of landmark decisions, the Korean Supreme Court has bolstered the rights to silence and counsel since democratization. First, in 1992 the Supreme Court made a landmark decision, which is often called the �New 21st Century Faction’ case, named after the title of the criminal organization the defendant belonged to. The Court held as follows:

Article 200(2) provides that prosecutors or policemen should inform a present suspect of the right to silence before interrogation. The right is based on the privi­lege against self-incrimination, which is guaranteed by the Constitution. Therefore, the statements elicited without informing of the right to silence in interrogation are illegally obtained evidence, and so should be excluded, even if they are disclosed voluntarily.^[130]

The court excluded the defendant’s confession by adopting the rationale of the U.S. Miranda rule^[131] to exclude the confession. Notably, the CPC did not have an explicit provision about the exclusion at that time.

Secondly, in two National Security Act violation cases in the 1990s,^[132] the Supreme Court also made landmark decisions, which may be called the Korean version of the U.S. Massiah rule.^[133] In these cases, the defendants requested to meet with their attorney when they were detained but the National Security Agency officers rejected their request. Then the defendants were referred to and interrogated by the prosecutor. The court held that the defen­dants’ self-incriminating statements were illegally obtained for violating their right to counsel and, thus, were excluded, holding as follows:

Article 12(4) of the Constitution provides people with the right to assistance from counsel when arrested or detained, accordingly Articles 30 and 34 of the Criminal Procedure Code prescribe the right of suspects or defendants to appoint counsel and communicate with counsel when they are in custody. The right to counsel like this constitutes the nucleus of the constitutionally guaranteed right to assistance from counsel... The limitation of the right to meet and communicate with counsel violates the constitutionally guaranteed basic right, so the illegally obtained confes­sion of the suspect should be excluded, and the exclusion means a substantial and complete exclusion.^[134]

The Constitutional Court has also repeatedly confirmed that the right to coun­sel in criminal process is an �absolute right’ of the defendant, so cannot be limited �by any reason including national security, public order or public welfare.’^[135]

Thirdly, in the decision of 11 November 2003, in a National Security Act violation case of Professor Song Doo Yul, an allegedly pro-North, left-wing Korean-German dissident who was arrested and detained when he visited Seoul, the Supreme Court made another ground-breaking decision to recog­nize the right to have counsel during interrogation as a constitutional right of suspects.^[136]

Neither the Constitution nor the CPC had an explicit provision for the right to have a lawyer present during interrogation at that time, although both provide the right to counsel in general. Therefore law enforcement authorities had not allowed defense counsel, retained by suspects, to attend interrogation sessions until recently. However, the Supreme Court held that even without an explicit provision to guarantee the right to have counsel present during inter­rogation, the right can be recognized by analogical interpretation of the Article 34 of the CPC, which allows for �the right to meet and communicate [with] counsel.’ The Court also provided very narrow exceptions not to permit coun­sel’s participation in interrogation, that is, the participation may be restricted only when there exists probable cause that the counsel would �obstruct inter­rogation’ or �leak the secret of investigation.’ Since this decision, the lower courts have excluded the defendants’ statement elicited without their counsel’s participation in interrogation.^[137]

Reviewing the infringement of a non-detained suspect’s right to counsel in a Public Office Election Act violation case, the 6-to-3 opinion of the Constitutional Court on 23 September 2004 also confirmed that the right to have counsel present during interrogation is a constitutional right of the suspect.^[138]

The 2007 revision of the CPC codifies all the aforementioned decisions. Article 244-3 of the CPC provides the Miranda rule.^[139] Prior to interrogation, investigative authorities should inform a suspect that (i) a suspect can choose not to make any statements or refuse to respond to specific questions; (ii) no disadvantage shall be suffered by a suspect even if he or she chooses not to make a statement; (iii) anything a suspect says after waiving the right to silence may be used as incriminatory evidence against the suspect in court; (iv) a suspect has a right to counsel including a right to have the counsel present during interrogation. Article 243-2 of the CPC provides the right to counsel during interrogation,^[140] but it may be restricted when there is �justifi­able cause.’^[141] The extent of �justifiable cause’ will be decided based on the 2003 Supreme Court decision in the Professor Song Doo Yul case.^[142]

Article 308-2 of the CPC also provides that �evidence obtained not through due process shall not be admissible.’^[143] This Article provides a statutory ground to exclude confessions or statements obtained through violation of the proce­dural rights of suspects.

B. Newly introduced tape recording of interrogation

Before the 2007 revision of the CPC, it contained no provision about the evidential power of videotapes recorded during interrogation. Videotapes were rarely used in practice by investigative authorities. The Supreme Court consid­ered videotapes the same as the interrogation dossiers.^[144]

Things have changed as nowadays videotaping is recognized by law enforcement authorities in preventing disputes over the admissibility and accuracy of defendants’ statements during interrogation. In particular, the Department of Scientific Investigation in the Supreme Prosecutors’ Office has been very active in emphasizing the effectiveness of videotaping, and in 2004, recommended the Ministry of Justice and the Prosecutor General to adopt it. Prosecutors were encouraged by the mandatory videotaping experiments in some countries.^[145] And they came to consider videotaping of interrogation as the best method of restoring public confidence in them. Further, such videotapes were seen as ways of avoiding potentially damaging cross-examination targeted at police officers or prosecutors regarding what exactly occurred in an interrogation room and as a means to back up the evidentiary power of the pros­ecutor-made interrogation dossiers. However, defense attorneys are concerned that videotaping may simply provide legitimacy to the interrogation.

Prosecutors’ requests to insert in the CPC a provision regarding the eviden­tial power of videotapes recorded during interrogation were accepted by the PCJR. The original draft of the PCJR gave the videotapes secondary eviden­tiary power.^[146] However, concerned that such videotapes might prejudice juries and judges and might heighten incrimination of defendants, the National Assembly rejected the draft, providing that the videotapes may be used only �when it is necessary to refresh the memory of a suspect or a witness’ in a trial or a preparatory procedure for a trial. ^[147] Videotapes are not allowed to be watched by a judge but only by a suspect or a witness.

The original draft of the PCJR required consent by suspects or their coun­sel to record the videotapes, but the requirement was ultimately removed by the National Assembly.^[148] Therefore, even if a suspect objects, the investigative authorities may record interrogation, so there is a concern that the right to silence may be violated.

C. Recording of investigation process

The 2007 revision of CPC also mandates the investigative authorities to record the arrival time of a suspect, the time an investigation began and ended, and other matters necessary to supervise the investigation process.^[149] These other matters may include specific times of recess, the time a suspect ate a meal, and the time a suspect made a document by his or her own writing. The investiga­tive authorities are required to orally read the records for the suspect or have the suspect read them.^[150] This new system is to make the investigation process more transparent.

4. Prosecution

A. Wide discretion of prosecution

At the conclusion of the investigation, the prosecutor has discretionary power whether or not to prosecute. It is called the �principle of opportunity’ (Opportunitdtsprinzip). The prosecutor can exercise his discretionary power not to bring the case to court when he believes that the alleged facts do not constitute a crime or that there is insufficient evidence to prove the case. The prosecutor is also authorized to suspend prosecution in consideration of the suspect’s age, character, motive of crime, or other circumstances, even if incriminating evidence against the suspect is sufficient for prosecution.^[151] With neither a grand jury system nor private prosecution, the prosecutor has the exclusive authority to institute prosecution.

Because of the monopoly of investigative power and wide discretion in the prosecution, the Korean criminal justice system is often called a �prosecutor­ial justice’ system.

B. Widened appeal to the court against non-prosecution

The CPC provides a system of appeal to the High Court against non-prosecu­tion. Before the 2007 revision, the scope in which the appeal was available was limited only to three crimes by governmental officers: the crime of abuse of power, the crime of illegal arrest and detention, and the crime of battery and cruel treatment.^[152]

The 2007 revision expands the scope to make the appeal available to all crimes. The complainants who do not agree with non-prosecution may request that the High Court review the appropriateness of the non-prosecution.^[153] Before making such a request to the court, the complainants should request that the Prosecutors’ Office review the non-prosecution.^[154] If the High Court finds non-prosecution in appropriate, prosecutors must initiate prosecution.^[155]

5. Pre-trial Procedure

A. Expanded pre-trial discovery

Article 35 of the CPC states that �defense counsel may review and copy the relevant documents or evidence after the prosecution is filed.’ Even before the 2007 revision of the CPC, two Constitutional Court decisions made strides toward adopting a �pre-trial discovery’ system.

In the decision of 27 November 1997, the 7-to-2 opinion of the Constitutional Court held, in a National Security Act violation case, that it is unconstitutional for prosecutors to prevent defendants and their attorneys from accessing the investigative records kept by prosecutors before a trial is open after prosecution is filed.^[156] Prior to the decision, prosecutors had refused to allow defense attorneys to access the records, arguing that access is possible only after a trial is open because access before the trial would weaken the pros­ecution cases. The Court held:

The defense attorney’s access to the investigative records kept by prosecutors is indispensable to maintain the substantial equality between parties and materialize fast and fair trial. Excessive limitation on the access violates the defendant’s right to fast and fair trial and right to counsel.

It stated that counsel’s right to access the investigative records may be limited only when �there exist concerns of leaking national secrets, eliminating evidence, threatening witnesses, violating privacy or causing conspicuous obstacles to investigation.’

Following the 1997 decision, the 2007 revision adopts a pre-trial discovery system. Defendants or their attorneys may request that prosecutors allow them to review or copy the documents or materials that prosecutors have kept after filing prosecution,^[157] which include documents that prosecutors will submit as evidence to the court, documents that include the name and out-of-court state­ments by planned witnesses for the prosecution, and exculpatory documents for the defense.

Prosecutors may deny or limit the discovery when there is a clear danger to national security, eliminating evidence, threatening witnesses, or creation of obstacles to investigation.^[158] If the request is denied, or the scope to review or copy is limited by the prosecutor, defendants or their attorneys may appeal to the court to review the prosecutor’s decision.^[159] If the request is accepted by the court, the court may order prosecutors to provide the documents to the defendants or to their attorneys.^[160]

It is necessary to note that this new pre-trial discovery is not available to documents or materials that investigative authorities have kept before prose­cution is filed. So defendants or their attorneys may not review or copy the documents or materials made by the investigative authorities before prosecu­tion is filed. In the decision of 27 March 2003, however, the 5-to-4 opinion of the Constitutional Court extended the above 1997 decision to the setting of a fraud case where a judicial habeas corpus hearing for the suspect was about to be held, even before prosecution was filed,^[161] even though Article 35 of the CPC applies only after prosecution. The majority stated that despite the words of the Article, if the defense attorneys are not allowed to access the investiga­tive records, they cannot sufficiently defend their clients in the habeas corpus hearing.

Prosecutors may make use of the pre-trial discovery only when the defen­dants or their attorneys have presented argument that the defendant was not at the crime scene or he is insane in a court proceeding or preparatory procedure for a trial.^[162] The scope of the discovery available to prosecutors is narrower than that available to the defense. Different from the discovery available to the defense, however, no exception is available in the discovery available to prosecutors.

B. Pre-trial preparatory conference

The 2007 revision established a new pre-trial preparatory conference for an expeditious and effective trial. Presiding judges may open this procedure at their discretion.^[163] Once opened, prosecutors, defendants, and defense attor­neys have a duty to cooperate throughout the procedure.^[164] Each party may submit the summary of its factual or legal argument and its plan for proving its arguments to the court, and a presiding judge may order each party to submit the summary and the plan.^[165] The court should send the document that a party has submitted to the court to the other parties to the case.^[166]

In the pre-trial preparatory conference the court may take one of the follow­ing actions: clarify the accused criminal fact and the applied legal provisions, allow alterations or amendments to the facts and provisions, arrange the issues of the case, allow the request of evidence, clarify the contents of the argument regarding the requested evidence, decide whether to admit evidence, and decide the appropriateness of a request to review or copy documents and so forth.^[167]

6. Trial

A. Bench trial by professional judges in the great majority of cases^[168]

Except for cases where a defendant accused of serious felonies has requested a jury trial, which was newly introduced in 2007,^[169] a defendant in a vast majority of cases is found guilty and given a sentence solely by a professional judge.^[170]

Cases which involve offenses punishable by capital punishment, life imprisonment, or an imprisonment for not less than one year, are tried by a three-judge court.^[171] All other cases are heard by a single judge.^[172] Trials are open to the public, except in those rare instances where national security, public morals, or the privacy of individuals are at risk.^[173]

A trial cannot proceed in the absence of defense counsel when the defen­dant has been charged with an offense punishable by the death penalty or a prison sentence of more than three years.^[174] In addition to the above situations, the trial judge must also appoint defense counsel when the defendant is a minor, 70 years old or older, suspected of mental illness, or when she is indi­gent.^[175] The defendant has the right to remain silent during the trial,^[176] and the judge should inform the defendant of that right.^[177]

B. Newly arranged trial process

The 2007 revision changes the anatomy of a courtroom. Before the revision, the prosecutor and defense attorney sat facing each other, while the defendant was separated from his counsel and located in front of the bench facing the judges. This setup implied that the defendant was not an adversarial party equal to prosecutor and that the defendant was no more than the object of the trial. It also prevented the defendant from consulting with his counsel. The 2007 revision moves the defendant’s seat next to that of his defense attor­ney.^[178]

The 2007 revision stipulates two leading principles for trial process. The first is â€?the principle of concentrated trial’ to prevent the delay of trial.^[179] According to the principle, except in the case of unavoidable circumstances a trial should run consecutively every day if more than two days are necessary for the trial.¹²⁵ The second is â€?the principle of oral pleadings.’¹²⁶ This princi­ple is meant to overcome the phenomenon of â€?trial by dossiers’ in which truth­finding depends heavily on the dossiers submitted by parties rather than on the cross-examinations by the parties in a courtroom. Considering the strong evidentiary power of the prosecutor-made dossier,¹²⁷ the phenomenon tended to be advantageous to the prosecution.

The 2007 revision mandates that the prosecutor make an oral statement of the criminally accused fact and applied legal provisions at the beginning of a trial.¹²⁸ Before the revision, such a reading was not mandatory. The revi­sion also mandates that the defendant make a statement regarding whether he admits the accused facts after the prosecutor makes his opening state- ment.¹²⁹ The defendant does not have to make such a statement if he exer­cises the right to silence.¹³⁰ If the defendant admits the accused crime, the case goes through more brief investigation of evidence and moves to the sentencing process.

The 2007 revision makes the questioning of a defendant available only after the investigation of evidence.¹³¹ Before the revision the questioning of the defendant was initiated by prosecutor and defense attorneys consecu­tively before the investigation of evidence. This procedure was criticized for making the statements of defendants the main focus of trials, rather than evidence. Article 296-2 of the CPC thus moves the questioning after the investigation of evidence. So the statements of a witness or a victim or the result of scientific investigations, for example, will be examined before the defendant is questioned. If a presiding judge permits it, however, the ques­tion may be given to the defendant even before the investigation of evidence.¹³²

The 2007 revision adopts a sanction system to ensure the attendance of a witness at trial. Article 150-2 imposes â€?a duty of reasonable efforts to make a witness attend in a trial’ on the party who has requested the witness.¹³³ Article 151 provides a much heavier sanction on witnesses who do not attend for no justifiable reason. Such a witness must pay the trial costs resulting from her non-attendance, and a fine of up to 5,000,000 won (currently equivalent to

¹²⁵ Id Art. 267-1(2).

¹²⁶ Id Art. 275-3.

¹²⁷ See infra text accompanying notes 158-61.

¹²⁸ CPC, supra note 6, Art. 285.

¹²⁹ Id Art. 286(1).

¹³⁰ Id. The presiding judge should inform the defendant of the right to silence. Id Art. 283-2(2).

¹³¹ Id Art. 296-2.

¹³² _Id.

¹³³ CPC, supra note 6, Art. 150-2(2).

about U.S. $3,600) may be imposed on her.^[180] If the witness does not attend for no justifiable reason despite these sanctions, she may be put into jail for up to seven days.^[181]

The 2007 revision also changes Article 316 to allow investigators’ witnesses to testify regarding statements made by a defendant during interro­gation when such statements were made under especially reliable circum­stances.^[182] The scope and admissibility of investigators’ testimony, however, is not specified. These will be provided in the future by courts’ decisions inter­preting this change.

There exists a tension between Article 316 and current judicial decisions. The Supreme Court has held that a police officer’s testimony that a suspect had confessed during interrogation is not admissible if the suspect denied his statement during interrogation.^[183] Article 312(3) of the CPC has provided that dossiers made by police officers shall not be used as evidence if the defendants or their attorneys contest the contents of the dossiers as not matching what the defendants stated during interrogation.^[184] Recognizing the coercive nature of police practices in interrogation rooms, the Supreme Court was, at the time of the aforementioned decision, trying to prevent investigative authorities from circumventing Article 312(3) of the CPC.

7. Evidence Law

The 2007 revision explicitly provides that prosecutors are given the burden of proving the defendant’s guilt �beyond reasonable doubt,’^[185] which reconfirms the decisions of the Supreme Court.^[186] The reliability of evidence is decided by a judge.^[187]

A. Confession rule

The Constitution and the CPC provide explicit legal provisions regarding the exclusion of an involuntary confession. Article 12(7) of the Constitution provides for the exclusion of �involuntary confessions’ made under torture, battery, threat, deceit or after prolonged custody.^[188] Following Article 12(7), the CPC also provides an exclusionary rule for confessions whose voluntari­ness is doubtful.^[189]

Relying on these provisions, the Supreme Court has excluded involuntary confessions in a number of cases.^[190] After democratization, torture in interro­gation seemed to disappear, and Lee Geun-Ahn, who was a notorious torture specialist, known for cruelly torturing Kim Geun-Tae and other democratiza­tion movement activists under the authoritarian regime, was sentenced to a seven-year imprisonment in 2000.^[191] However, a case involving a murder suspect tortured to death during interrogation in the Seoul District Branch of the Supreme Prosecutors’ Office in 2002 illustrates why civilized society needs the confession rule and why illegally-obtained confessions should be excluded.

Article 310 of the CPC also provides that a defendant shall not be found guilty solely on the basis of her confession, and there should be supplemen­tary evidence to back up the confession.^[192] Article 310 is to prevent the inves­tigative authorities from concentrating on getting a confession from suspects without efforts to obtain other evidence.

B. Adoption of discretionary exclusionary rule in search-and-seizure - Korean version of Mapp

The CPC requires a judicial warrant for search-and-seizure and inspection.^[193] The exceptions to the warrant requirement are: search-and-seizure and inspec­tion incidental to arrest on warrant, emergency arrest, arrest of flagrant offend­ers, detention on warrant,^[194] emergency search-and-seizure, and inspection on the spot of committed crimes.^[195]

Before the 2007 revision of CPC, neither the Constitution nor the CPC contained a provision regarding the exclusion of illegally obtained physical evidence. Although the Supreme Court adopted Miranda and Massiah,^[196] the Court had consistently declined to exclude the physical evidence obtained by illegal search-and-seizure procedures, providing the following rationale, �[e]ven though the procedure of seizure was illegal, the value as evidence does not change because the procedure did not affect the quality and shape of the substance itself.’^[197] The court clearly rejected the U.S. Fourth Amendment Mapp exclusionary rule.^[198]

Academics and defense attorneys argued that unless the illegally-obtained evidence is excluded, the constitutional requirement for the search-and-seizure warrant is left with no teeth. There are no other effective remedies for illegal police misconduct in Korea. Criminal or civil liability and internal discipline have not proven effective in deterring police misconduct in Korea.

The situation began to change with the Supreme Court decision of 11 June 2002. The Court held that, in a bribery case, the dossiers including the defen­dant’s statement should be excluded because obtained by illegal �emergency arrest’ that does not fulfill the requirements of warrantless arrest in Article 200-3 (1) of the CPC.^[199] This decision may be called a Korean version of the McNabb-Mallory rule.^[200] This decision is to deter the abuse of �emergency arrest’ by law enforcement authorities.

The exclusionary rule was finally stipulated by the 2007 revision of the CPC. Article 308-2 of the CPC provides that �evidence obtained not through due process shall not be admissible.’^[201]

Before the 2007 revision of CPC, on 15 November 2007 the Supreme Court also made a decision to exclude illegally obtained physical evidence.^[202] The Court held that the illegally obtained evidence should not be automatically excluded but could be excluded considering all the circumstances regarding the illegality of the investigation. The Court, thus, adopted discretionary exclusionary rule rather than a mandatory one. The majority opinion of the Court also provided a standard by which to measure whether to exclude such evidence: illegally obtained evidence should be excluded in principle, but it may be exceptionally admissible when the violation made by investigative authorities does not infringe upon the �substantial contents of the due process.’ This standard itself is still abstract. The degree of the illegality and the intent of the investigative officer may be considered in applying the standard in a case.

It is also noteworthy that the majority opinion explicitly states that the secondary evidence derived from the first evidence obtained illegally should be excluded. Here the court explicitly adopts the U.S. principle of �the fruit of poisonous tree.’^[203]

C. Strong evidentiary power of prosecutor-made dossiers

Article 312(1) of the CPC has given an exceptionally strong evidentiary power to prosecutor-made dossiers even if they are hearsay.^[204] Before the 2007 revi­sion, it provided that the interrogation dossiers, which can include the defen­dant’s statement or confession, may be admissible at trial (i) if they contain a defendant’s signature and were made by prosecutors, and (ii) �if there exist special circumstances which make the dossiers reliable,’ without cross-exam­ination of the interrogators even if the defendants contend that the contents of the dossiers do not match what they stated during interrogation.^[205] Assuming the interrogation by prosecutors itself may fulfill the requirement of �special circumstances which make the dossiers reliable,’ the Supreme Court recog­nized the legitimacy of Article 312(1).^[206] Thus, prosecutors enjoyed a signifi­cant evidentiary advantage.

However, Article 312(1) was strongly criticized because it made it extremely difficult for defendants to escape guilty verdicts at trial once they made self-incriminating statements in front of prosecutors. The disadvantage to the defendants is especially serious considering that, until the Professor Song case of 2004,^[207] they had not been allowed to have a lawyer during inter­rogation. A number of scholars and defense attorneys have strongly criticized the Article for making the prosecutor a de facto judge, and for making defen­dants’ statements in front of prosecutors in an interrogation room de facto testimonies in a trial.

The JRC under the Supreme Court in its final recommendations on 31 December 2004 stated that Article 312(1) is so dossiers-oriented that it infringes upon the defendants’ right to cross-examination; and called for its revision. On 15 April 2005, responding to the above criticism on Article 312(1) and following the recommendation of the JRC, the PCJR submitted its first draft to revise the Article to prohibit prosecutors’ interrogation dossiers from being admissible in a trial unless the defendants agree to their use. At the same time, the draft allows police officers or prosecutors who interrogated the defendants to testify against the defendants when the defendants deny what is recorded in the dossiers. The intention of the PCJR was to abolish the phenom­enon of �trial by dossiers’ wherein truth-finding is made heavily dependent on prosecutor dossiers rather than cross-examination by the parties in front of judges in a courtroom. This intention came from the idea that the status of prosecutors as �semi-judges’ should be dismantled and prosecutors should be an adversarial party in every sense.

However, the draft caused strong objection from prosecutors even while it attracted praise from defense attorneys and academics. Prosecutors criticized that the draft allowed defendants to easily invalidate their confession or state­ment in the interrogation room later in a trial, thus incapacitating prosecutors to fight against crime. They were very uncomfortable that they might be called as a witness to testify regarding the defendant’s statements and to be cross­examined by defense attorneys. They were also unsatisfied with the draft because it might intend to undermine their status of �semi-judge’ and make them no more than an adversarial party.^[208]

While the debate is ongoing, the Constitutional Court, in a decision of 26 May 2005, reviewed the constitutionality of Article 312(1).^[209] The 5-to-4 opinion of the Court held the requirement of �special circumstances which make the dossiers reliable’ constitutional. However, six out of nine Justices recommended that the vagueness of the requirement be removed. In particu­lar, four Justices in their dissenting opinion stated that such a special eviden­tiary power given to the prosecutor-made dossiers may be allowed only when �procedural transparency of the interrogation by prosecutors is reinforced and the defense attorney’s participation in the interrogation is guaranteed.’

The hot debate over Article 312(1) ended in a compromise. The first draft did not get strong support either from judges, who were afraid that it could make trial much more complex and lengthy, or from the public, who were afraid that it could free criminals who have changed their mind after they confessed in front of prosecutors.

Then the PCJR submitted a new draft on 18 July 2005 which kept the eviden­tiary power of the prosecutor-made interrogation dossiers alive but imposed stricter requirements.^[210] The National Assembly revised the new draft to make the 2007 revision, which provides two tracks for the admissibility of prosecutor- made interrogation dossiers. First, in cases where the defendant admits in a preliminary hearing or a trial that the dossiers are recorded as the defendants have stated, the dossiers are admissible (i) if they are made by legal process and method, and (ii) if it is proven that they are made under especially reliable circumstances.^[211] Secondly, in cases where the defendants do not admit in a preliminary hearing or a trial that the dossiers are recorded as the defendants have stated, the dossiers are admissible (i) if they are made by legal process and method, (ii) if it is proven by objective method, such as recorded tapes that the dossiers are recorded as the defendants have stated, and (iii) if it is proven that they are made under especially reliable circumstances.^[212]

It is not clear what the meaning of �especially reliable circumstances’ is here. Although the PCJP explicitly specified the �presence of their attorney during interrogation’ as an example of �especially reliable circumstances’ in its draft, this was ultimately omitted in the final version.^[213] Prosecutors will keep making efforts to include self-incriminating statements of the defendant in the prosecutor-made interrogation dossiers and will argue that the dossiers should be admissible without cross-examination in the court even if they have been made without the presence of a defense attorney.

D. Other dossiers

The admissibility of dossiers made by police officers remains intact although the police wanted police-made dossiers to have the same evidentiary power as prosecutor-made dossiers. Police dossiers shall not be used as evidence if the defendants or their attorneys contend that the contents of the dossiers do not match what the defendants stated during interrogation.^[214]

The admissibility of the investigative dossiers regarding the statements of non-suspect references may be admissible in a trial (i) if they are made by legal process and method, (ii) if it is proven by objective method such as recorded tapes that the dossiers are recorded as the references have stated, (iii) if it is proven that they are made under especially reliable circumstances, and (iv) if the defendant or his counsel have the chance to question the reference in a trial.^[215]

8. Victim Protection

Expanding the protective systems for sexual violence victims in the Act for the Punishment of Sexual Assault Crimes and Protection of Victims of 1993,^[216]0 the 2007 revision of the CPC provides that the court may allow �a person who has a reliable relationship with a crime victim’ to sit with the victim during the trial in cases where it may cause the victim significant anxiety or tension to be questioned as a witness.^[217] The Court should have �a person who has a reliable relationship with the victim’ sit with the victim in cases where the victim is under 13 years old or has any physical or mental disability.^[218] These protec­tive systems also apply to the investigation procedure employed by investiga­tive authorities to question such victims.^[219]

The 2007 revision also establishes a video system to protect vulnerable crime victims. When examining under-age victims about sexual violence crimes, the court may use video or closed-circuit television facilities to ensure that they do not have to face their offender during the examination.^[220] Questioning by the use of video or closed-circuit television facilities may also be available for victims of non-sexual violence crimes in cases where they have significant difficulties in confronting the offender due to the nature of the crime, the age, or psychological or physical status of the victim.^[221]

The 2007 revision strengthens the victim’s right to make a statement during a trial. In the previous system, only the victim had such a right. Now the right is also given to the victim’ agents including his spouse, relatives, brothers and sisters.^[222] When a court questions the victim or his agents, it should give them a chance to speak his opinion about the degree and consequence of the damage caused by the crime as well as the punishment of the defendant.^[223] The victim’s statement as a witness in the trial may be disclosed by the court to protect his privacy or safety.^[224] The 2007 revision also introduces a victim’s right to review or copy court documents.^[225]

IV.