South Korea

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Background

The kingdom of Korea was established around the 7th century and included what is today South and North Korea. [1] In 1905, the Korean peninsula was declared a protectorate of Japan and was annexed by the Japanese in 1910 (World Factbook). It was not until Japan’s surrender at the end of World War II in 1945 that the Republic of Korea (ROK) was created in the southern half of the peninsula and the communist People’s Democratic Republic of Korea (DPRK) was established in the north (World Factbook). Not long after, the United States and the United Nations fought alongside the South in the Korean War (1950-1953), a war intended to defend the South from its communist neighbor (World Factbook). The war ended in 1953 with the creation of a demilitarized zone at the 38th parallel. This demarcation line has since divided the peninsula between the ROK and the DPRK (World Factbook). Since the war, South Korea has continued to achieve rapid economic development in comparison to the North and is now considered a modern democracy (World Factbook). Tensions between the North and the South are still strong, however, and relations have been seriously damaged due to Northern attacks on Southern ships and civilians (World Factbook). The capitol of South Korea is Seoul and the current president is Lee Myung-bak (World Factbook). Almost 100% of the population is ethnic Korean, with the exception of 20,000 Chinese, and the national language is Korean (World Factbook). 26.3% of the population is Christian, 23.2% is Buddhist, and 49.3% have no religious identity. [2]

Type of system

The South Korean legal system is a combination of European civil law, Anglo-American law, and Chinese principles. [3] South Korea has six courts: the Supreme Court, the High Courts, the District Courts, the Patent Court, the Family Court, and the Administrative Court. The Supreme Court, the High Courts, and the District Courts are part of the basic three-tiered system. The Patent Court is on the same level as the High Courts, and the Family and Administrative Courts are on the same level as the District Courts. There is also a European-style Constitutional Court that rules on the constitutionality of laws, impeachments, the dissolution of political parties, etc. [4]

Source of defendants’ rights

The majority of the defendants’ rights are protected in the Constitution of the Republic of Korea. The Constitution states that all individuals have the right to dignity, proclaims that human rights are inviolable, prohibits unlawful arrests, detentions, and seizures, forbids the use of torture, guarantees the immediate right to legal counsel, and awards the right to a fair and speedy trial. [5]

Pre-trial phase

The Constitution of the Republic of Korea states that at the time of arrest, the suspect has the right to be informed of the reason for his arrest and his right to prompt legal counsel. The suspect’s family or relatives must also be informed of the arrest, the reason for the charges, and the time and place that the arrest took place. [6] All arrests must be made with a warrant issued by a judge. If the arrest is made without a warrant, the prosecutor must file a request for a warrant within 48 hours, or the suspect must be released. [7]

The Constitution states that all people are protected from intrusions into their homes. In the case of a search and seizure, a warrant issued by a judge upon a prosecutor’s request must be presented. [8] The Constitution also declares that no person may be unlawfully detained and that a warrant must be issued by a judge in all cases of arrest, detention, and search or seizure.[9] The law also states that pre-trial detention may not exceed 20 days, with a possible extension of only 10 days. [10]

Once crime has been committed, a judicial police officer completes an investigation and transfers the case to a prosecutor. The prosecutor may then decide whether to continue investigation or to end the case. South Korean law states that the police may not interrogate a suspect for longer than six hours if he has voluntarily submitted to questioning. An individual also has the right to legal representation during the interrogation, unless the lawyer impedes the investigation in any way. [11]

The Constitution of the Republic of Korea states that all individuals have the right to immediate legal counsel upon arrest or detention. In the event that the defendant cannot secure or afford his own legal representation, the government of Korea must provide him with a lawyer. [12] Additionally, if the defendant is a minor, seventy years or older, or has a mental illness, the court is automatically required to provide them with a defense lawyer. [13]

Court procedures

Trials involving crimes that are punishable by capital punishment, life imprisonment, or a sentence of one-year imprisonment or more are tried by a panel of three judges. All other cases are tried by a single judge. The prosecutor, as an agent of the government, introduces evidence to the court, questions the defendant, examines the witnesses, and carries out other duties. [14]

All South Korean trials are open to the public and have public jury systems, although jury verdicts are not final. [15] South Korean trials provide defendants with a number of rights, including the presumption of innocence, protection from self incrimination, the right to a speedy trial, and protection from double jeopardy. [16]

Both the defense and the prosecution have the right to call witnesses to the stand and to question them. [17] The defense has the right to access relevant evidence that is held by the police. [18]

In order to become a lawyer in South Korea, a person must pass the National Judicial Examination and participate in a two year course at the Judicial Research and Training Institute. After completion of these two components, one may become a judge, prosecutor, or privately practicing attorney. [19]

The Constitution of the Republic of Korea states that anyone who receives bodily injuries due to a crime may receive compensation from the state. [20] The victims is also allowed the right to make a statement at the trial of the offender. [21]

Both the defendant and the prosecution have the right to appeal to an appellate court. Appeals of trials heard before a three judge panel are heard by the High Court. All other appeals are heard by the appellate division of the District Court. The prosecutor and the defendant have the right to appeal to the Supreme Court when they are not satisfied with the verdicts of the lower courts. [22]


See Criminal Justice Systems Around the World

References

  1. CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook
  2. CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook
  3. CIA Factbook, available at www.cia.gov/library/publications/the-world-factbook
  4. http://www.nyulawglobal.org/Globalex/South_Korea.htm#_Judicial_System
  5. Constitution of the Republic of Korea, Chapter II
  6. Constitution of the Republic of Korea, Article 12
  7. http://www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp
  8. Constitution of the Republic of Korea, Article 16
  9. Constitution of the Republic of Korea, Article 12
  10. US Department of State Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010
  11. US State Department Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010
  12. Constitution of the Republic of Korea, Article 12
  13. http://www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp
  14. http://www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp
  15. US State Department Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010
  16. US State Department Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010
  17. US State Department Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010
  18. US State Department Human Rights Report, available at www.state.gov/g/drl.lrs/hrrpt/2010
  19. www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp
  20. Constitution of the Republic of Korea, Article 30
  21. Constitution of the Republic of Korea, Article 27
  22. http://www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp

QUICK FACTS

  • South Korea has a total prison population of 47,514 with 98 out of every 100,000 people in prison
  • 31.8% of South Korean prisoners are pre-trial detainees, 5.4% are women, and 1% are juveniles
  • South Korea has a total of 50 prison institutions: thirty-six correctional institutions, eleven detention centers, and three branch office
  • The official capacity of the South Korean prison system is 44,430 and capacity is currently at 106.9%
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