Article 254, paragraphs (1) and (3) of the Criminal Procedure Act specify that the initiation of public prosecution involves submitting a written indictment to a competent court. The written indictment must include the names of the defendants and details enabling to ascertain their identification, the name of the crime, the factual basis for the charged crime, and the relevant legal provisions. Section 118, paragraph (2) of the Regulations on Criminal Procedure further states that, except for documents outlined in Section 118, paragraph (1), no additional materials that may lead the court to form preconceptions about the case should be appended to the indictment, and their contents should not be quoted. Both criminal procedure commentators and courts assert that it is impermissible to include superfluous information in the indictment that could possibly create preconceptions. This overall approach is commonly referred to as the principle of written indictment only.
The principle of written indictment only aims to prevent the court from forming a biased view of the defendant's guilt based on information not presented during the trial.
This study investigated the application of this principle in Korea, expounding that the Supreme Court en banc held a prosecution violating the principle of written indictment only to be deemed invalid. However, it observed that if the defendant raises no objection during the trial, and the judge reaches at forming a conviction concluding the evidence-gathering process, the defendant cannot subsequently claim such a violation.
Furthermore, the study addressed a lack of specific guidance from the Supreme Court on remedying defects in violation of the principle of written indictment only. It suggested that the court should take corrective measures in the early stages of criminal proceedings, such as exercising its right to seek clarification from the prosecutor or mandating the removal of the relevant information from the written indictment.
In conclusion, several issues in applying the principle of written indictment only in Korea were identified and pointed out elaborately. The study recommends legislative reforms attempting to revise the Criminal Procedure Act to provide clarity on the principle's application and calls on courts to build a body of precedents that can serve as a guidance in its application.