In South Korea, after the finalization of a criminal conviction, overturning or reopening a criminal conviction is limited to specific post-conviction remedies noted below. We at IPG Legal have, regrettably, seen too many cases involving less-than-proactive and diligent representation that led to convictions that merit, at least, a reopening.
Overturning a Korean Criminal Conviction
The following article addresses the primary ways to overturn a criminal conviction in Korea.
The major avenues of overturning a final and conclusive criminal conviction judgment in Korea are via:
- Retrials
- Extraordinary Appeals
- Constitutional Court Complaints
For more articles on Korean Criminal Law, please see: IPG Legal’s Criminal Law Archive.
1. Retrials in Korea (Korean Criminal Procedure Act, Articles 420 – 422)
The most common way to overturn a finalized conviction in Korea is to apply for a Retrial. A retrial motion is the only direct method to overturn a finalized conviction. Article 420 of the Korean Criminal Procedure Act governs the type of cases that warrant reopening. A retrial motion may be successful in the following situations:
- Forged or Altered Evidence
- Testimony, Expert Evidence, Interpretation, or Translation was False
- When a Guilty Verdict for “False Accusation” was Finalized Against the Accuser of the Person Applying for Reopening
- Conflicting Judgments: When the Finalized Decision was Altered by Another Judgment
- When New Evidence was Discovered
- Concerning IP Rights, the Korean Intellectual Property Organization or a Korean court deemed the infringed right void.
- Judicial or Investigative Misconduct
In Korea, the court with jurisdiction over retrials is the court that rendered the final decision. The majority of cases in which a Retrial succeeded were cases in which New Evidence, Judicial Misconduct, or Investigative Misconduct was found.
2. Extraordinary Appeals in Korea (Korean Criminal Procedure Act, Articles 441-446)
An Extraordinary Appeal may only be filed by the Prosecutor General and is intended to correct clear legal errors. In reality, this appeal is only designed to remedy large-scale systemic errors.
3. Constitutional Complaint to the Korean Constitutional Court
In recent years (I worked for the Constitutional Court two decades ago, and this avenue was less applicable at that time), Constitutional Complaints to the Korean Constitutional Court have been a useful tool in declaring criminal laws and procedures unconstitutional.
A convicted person may prevail in a constitutional complaint to overturn a conviction if:
- A Statute Applying the Law Relied Upon for the Conviction violates the Constitution; or
- State Action violated Constitutional Rights.
Conclusion
The reopening or overturning of a finalized criminal conviction is legally possible, but practically difficult. If you are considering this option, it is essential to retain a legal team that includes a retired senior court judge and lawyers experienced with handling complex criminal defense matters. IPG Legal’s Criminal Defense Team has extensive experience assisting company executives, U.S. military personnel, invited contractors, and other foreign and domestic clients in high-stakes criminal defense matters.
by Sean Hayes
Sean Hayes is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only a few non-Korean lawyers as a Top Attorney by AsiaLaw, IPG Legal is consistently ranked a Top Dispute Resolution Law Firm for our litigation, arbitration, criminal defense and mediation services, and IPG Legal is consistently rated a top-tier law firm in corporate law, litigation, arbitration, franchise law, distribution law, estate law, family law, employment & labor law, and criminal defense.
Sean’s profile may be found at Sean C. Hayes. To schedule a call with Sean Hayes, please click: Schedule a Call with Sean Hayes.