Research Reports

Title Study on the Current Status and Operational Strategies of Criminal Retrials
Date 2024.05.27
Files Study on the Current Status and Operational Strategies of Criminal Retrials.pdf Study on the Current Status and Operational Strategies of Criminal Retrials.pdf

Study on the Current Status and
Operational Strategies of Criminal Retrials

 
Between 2002 and 2022, approximately 24,000 individuals had sought criminal retrials, resulting in an outcome where half faced dismissal of their retrial applications, while approximately 4,400 individuals were exonerated by ‘not guilty’ verdicts. Among these applications, past affairs cases (cases of historical significance) accounted for roughly 8.3%, with the remaining 91.7% evenly divided between general cases and reopening cases resulted from unconstitutionality decisions by the Constitutional Court. South Korea's criminal retrials can be categorized into three principal types: retrials upon past affairs, retrials based on unconstitutionality decisions, and general retrials, each having distinct characteristics and attributes.
Primarily, retrials predicated on unconstitutionality decisions under the Constitutional Court Act, demonstrate significant variance in application numbers and acquittal rates contingent upon whether such decisions were made and what penalty provisions were declared unconstitutional. While these retrials shall be recognized more clearly in terms of grounds for retrial compared with other types, challenges persist regarding the retroactive effect limitation under Article 47, Paragraph 3 of the Constitutional Court Act, the extent of recognizing unconstitutionality decisions as retrial grounds, and issues surrounding trial premises.
Secondarily, retrials upon past affairs stemming from South Korea's historical context, such as authoritarian regimes, illustrate unique features, including prolonged ineligibility for retrial and evidentiary difficulties on proving the grounds for retrial. Through legislative enactments, committee formations, and the broadening of retrial grounds via these committees' activities, on the spur of courts and the constitutional court, in parallel with the prosecution's initiative application for retrials and committees under the Ministry of Justice and the Supreme Prosecutors' Office, retrials for past affairs cases have undergone progressive expansion. Consequently, the initiation rate for past affairs retrials significantly exceeds those of other types, with commensurately high acquittal rates in retrial proceedings. Moreover, retrials of past affairs cases would be typically acknowledged with respect to retrial grounds under Article 420, Item 7 of the Criminal Procedure Act.
Save for the aforementioned types, general retrials constitute the most archetypal and persistently occurring type. Characterized by diverse convictions and multifarious retrial grounds, general retrials have seen a notable surge in application rates, showing active utilization, with the increase in number from 230 in 2002, 583 in 2009, 827 in 2015, to 1,142 in 2022. However, despite this apparent surge, out of a total of 11,009 general retrial cases during this period, 8,436 faced retrial application dismissals, with only 524 individuals acquitted following post-retrial commencement decisions. With due consideration to withdrawn retrial applications, out of 10 cases filed for criminal retrials, 8 faced retrial application dismissals, while approximately 1 out of 4 retrial commencement decisions resulted in acquittal or other favorable outcomes.
The underlying causes of these occurrences arise from strict interpretations of Article 420 of the Criminal Procedure Act concerning retrial grounds, passive utilization of fact-finding inquiries during retrial commencement procedures, and the burden on unrepresented retrial applicants to substantiate retrial grounds without the help of appointed defense counsel. Even for legal professionals or investigative agencies, and notably for individuals currently serving sentences in prison, proving retrial grounds encounters formidable challenges. Compounding these challenges are issues such as the disposal of records and evidence, and the time elapsed until retrial commencement decisions, further impeding the retrieval of such decisions. Consequently, while obtaining retrial commencement decisions remains arduous, operating the criminal retrial system with an anticipation of high acquittal probabilities upon obtaining such decisions renders the system inherently flawed, failing to safeguard innocent individuals against unjust punishments and rendering the distinction between retrial commencement and trial procedures under the Criminal Procedure Act virtually meaningless.
Hence, there exists a necessity to broaden the parameters delineating admissible grounds for retrial and to facilitate the issuance of retrial commencement decisions through the mitigating interpretation of Article 420 of the Criminal Procedure Act. Particularly, this entails a relaxation in the construction of Article 420, Item 5, which prescribes the novelty and clarity of evidence, Article 420, Item 2, which addresses retrial grounds arising from the falsification of evidence employed in a final judgment, and Article 422, which regulates the substitution of final judgments as proof of such offence with newly discovered evidence. In contrast to the current paradigm, Japan, stipulating a provision akin to Article 420, Item 5 of the Criminal Procedure Act, adopts a broader interpretation by considering the clarity of evidence as a means to have reasonable doubt concerning the factual findings of a final judgment, deeming it adequate if there exists a high or substantial likelihood of impugning the established acknowledgment. Similarly, France and Germany espouse wider interpretations concerning novel evidence relatively to South Korea, as they do not weigh whether the defendant was cognizant of such evidence, unlike the stance adopted by South Korea, which necessitates broader acknowledgment cognition from the defendant. Moreover, compared to South Korea, France and Germany employ judicial discretion more actively in ascertaining the presence of retrial grounds, and judiciously utilize mechanisms for suspension of sentence enforcement to facilitate evidence procurement conducive to the defendant's retrial grounds, thereby safeguarding the right to defense.
From a legislative standpoint, it is imperative to ensure the appointment of state-appointed defense counsel during retrial commencement procedures in cases where the retrial application exempts from palpable groundlessness and the defendant has not retained legal representation, thereby enabling access to legal counsel. Additionally, in cases where retrial is sought by contending that the criminal stipulation applied in the conviction, devoid of a declaration of unconstitutionality concerning the penalty provision, is unconstitutional, it is paramount to acknowledge the foundational premise of the trial, thereby affording the opportunity for retrial applications predicated on a declaration of unconstitutionality regarding the penalty provision by the Constitutional Court.
Moreover, in light of the dual procedure inherent within the criminal retrial system, characterized by the segregation of retrial commencement procedures and retrial adjudication procedures, wherein retrial commencement decisions are rendered subsequent to the identification of retrial grounds during the commencement phase, there arises an imperative to administer the system in a manner that mitigates undue delays in securing retrial commencement decisions. Accordingly, when appeals or re-appeals against prosecution's retrial commencement determinations ensue, it becomes imperative to expeditiously adjudicate the validity of retrial commencement through the court’s retrial adjudication procedures. Given the propensity for the destruction of records and evidence in numerous retrial instances, it is unfair to attribute this solely to the detriment of the retrial applicant, thereby necessitating the exploration of remedies for such situations. Furthermore, with respect to instances wherein acquittal verdicts are issued in retrials sans corresponding compensation, legislative remedies, such as the enactment of special statutes, are to be warranted.
The extended incarceration of individuals for durations exceeding ten years predicated on erroneous convictions, culminating in acquittals by spending two to three decades post-sentencing for retrial-eligible verdicts, is untenable. Equally unacceptable is the denial of retrial commencement decisions due to the arduousness in substantiating retrial grounds or the disposal of pertinent records and evidence. Furthermore, the endurance of repeated retrial applications, extending to second, third, or even fourth attempts, prior to attaining retrial commencement decisions, or dependence solely on improbable circumstances such as confessions from actual perpetrators to possibly secure acquittals in retrials, is likewise unacceptable. Even in instances of culpability, individuals ought to be afforded the opportunity to substantiate the acknowledgment of retrial grounds, procure retrial commencement decisions, and present any misconduct during retrial adjudication proceedings, provided they have not been afforded a fair investigation and trial consistent with due process. By adhering to such procedural norms within the criminal retrial framework, the likelihood of wrongful punishment inflicted upon innocent individuals diminishes, enabling wrongfully convicted persons to reclaim their integrity and seek redress for incurred damages, thereby ensuring the proper adherence to legal procedures within criminal proceedings. Such assurances foster a sense of tranquility and engender trust in the efficacy of the criminal justice system among the populace.
 


bookmark 트위터 바로가기 페이스북 바로가기 구글+ 바로가기 카카오스토리바로가기 밴드 바로가기 url 바로가기
Previous Previous Research on the Current Status and Revitalization of Citizen Participation Trials
Next Next Measures to Enhance Professional Competencies of General Service Court Officials