What Is a Suspended Indictment?
A suspended indictment is a disposition in which a prosecutor decides not to bring charges even though indictment would be possible, on the grounds that prosecution is deemed unnecessary.
A suspended indictment (기소유예) is one of the prosecutor's non-prosecution dispositions. Under Article 246 of the Korean Criminal Procedure Act, if the prosecutor does not bring charges, the case does not proceed to trial and is closed.
In other words, a suspended indictment can be described as leniency that the prosecutor grants to the suspect.
Basis for a Suspended Indictment
A suspended indictment is possible under the principle of prosecutorial discretion in Article 247 of the Korean Criminal Procedure Act.
Article 247 (Principle of Prosecutorial Discretion) The prosecutor 「may decline to bring charges」 taking into account the matters set out in Article 51 of the Criminal Act.
In this regard, Article 51 of the Criminal Act reads as follows.
Article 51 (Conditions for Sentencing) In determining a punishment, the following matters shall be taken into account.
1. The offender's age, character and conduct, intelligence and environment
2. The relationship to the victim
3. The motive, means and outcome of the offense
4. The circumstances following the offense
In short, the prosecutor may decline to bring charges by weighing the circumstances of the offender and the offense.
Effects of a Suspended Indictment
As for the effects of a suspended indictment, because no indictment proceeds, the case does not go to trial, so the case cannot move forward.
Since there is no trial, no punishment is imposed for it, and no criminal record is created either.
However, because the investigation was carried out, the record is kept by the investigative authorities for 5 years, and if a similar offense is committed, this record may work against you.
Re-Indictment After a Suspended Indictment
A suspended indictment literally means that indictment is being postponed. Therefore, even if a suspended indictment has been granted, charges can still be brought, and the fact that a suspended indictment was granted does not affect the validity of that indictment.
Even if the prosecutor, having once issued a disposition of suspended indictment regarding the offense of larceny, later reopens the case and brings charges, this has no effect whatsoever on the validity of the indictment, and the fact that the court rendered a guilty verdict on those charges cannot be said to violate the principle of ne bis in idem (double jeopardy).
(Supreme Court 1983. 12. 27. Judgment 83Do2686, 83Gamdo456)
That said, in practice it is rare for a case to be re-indicted once a suspended indictment has been granted, so there is no great need to worry if you have received one.
How to Obtain a Suspended Indictment
To obtain a suspended indictment, your position improves the more of the following factors you satisfy: the suspect shows genuine remorse, it is a first offense, the offense is not serious, there are mitigating circumstances in how the offense came about, the offender is young, a settlement has been reached with the victim, and so on.
How to Respond to a Suspended Indictment
A suspended indictment is a highly favorable mechanism for the suspect, but it is not so for the victim.
When a suspended indictment is issued, the victim may feel it is unfair.
The legal safeguards and the available ways to respond to a suspended indictment to address this are as follows.
1. Notification of the disposition to the complainant and others, and notification of the reasons for non-prosecution
2. The appeal (hanggo) system
3. The application for adjudication (jaejeong sincheong)
Notification of the Disposition and of the Reasons for Non-Prosecution to the Complainant and Others
Notification of the disposition to the complainant and others, and notification of the reasons for non-prosecution, are provided for in Article 258(1) and Article 259 of the Korean Criminal Procedure Act.
Article 258 (Notification of the Disposition to the Complainant and Others) ①When the prosecutor brings charges or decides not to bring charges in a case involving a criminal complaint or an accusation, withdraws the prosecution, or makes a transfer under Article 256, the prosecutor shall, within 7 days from the date of that disposition, notify the complainant or the accuser of its substance in writing.
Article 259 (Notification of the Reasons for Non-Prosecution to the Complainant and Others) Where the prosecutor has decided not to bring charges in a case involving a criminal complaint or an accusation, the prosecutor shall, upon the request of the complainant or the accuser, explain the reasons in writing within 7 days to the complainant or the accuser.
In other words, if the prosecutor has issued a suspended indictment, the prosecutor must give notice of its substance, and if the complainant or accuser so requests, must explain the reasons in writing.
The Appeal System for a Suspended Indictment
The appeal system for a suspended indictment is provided for in Article 10(1) and (4) of the Prosecutors' Office Act.
Article 10 (Appeal and Re-Appeal) ① A complainant or accuser who is dissatisfied with a prosecutor's non-prosecution disposition may appeal in writing to the Chief Prosecutor of the competent High Prosecutors' Office, through the District Prosecutors' Office or branch office to which that prosecutor belongs. In this case, if the prosecutor of the relevant District Prosecutors' Office or branch office finds the appeal to be well-founded, the prosecutor shall correct (更正) that disposition.
④ The appeal under paragraph (1) must be made within 30 days from the date of receiving the notification under Article 258(1) of the 「Criminal Procedure Act」.
Regarding the prosecution's suspended indictment, the complainant or accuser may file an appeal within 30 days from the date of receiving the notification, and if the appeal is found to be well-founded, the suspended indictment may be canceled.
The appeal is filed in writing with the Chief Prosecutor of the competent High Prosecutors' Office, through the District Prosecutors' Office or branch office to which the prosecutor who issued the suspended indictment belongs.
Application for Adjudication on a Suspended Indictment
The application for adjudication (jaejeong sincheong) on a suspended indictment is provided for in Article 260 of the Korean Criminal Procedure Act.
Article 260 (Application for Adjudication) ①A person who has filed a criminal complaint as a party entitled to do so (for the offenses under Articles 123 through 126 of the 「Criminal Act」, this includes a person who has filed an accusation. The same applies hereinafter in this Article) may, upon receiving notice from the prosecutor that charges will not be brought, apply to the High Court that has jurisdiction over the seat of the District Prosecutors' Office to which the prosecutor belongs (hereinafter the “competent High Court”) for an adjudication on the propriety of that decision. Provided that, for the offense under Article 126 of the 「Criminal Act」, an application for adjudication may not be filed against the expressed intention of the person about whom the matter would be made public. <Amended 2011. 7. 18.>
②To file an application for adjudication under paragraph (1), one must first go through the appeal under Article 10 of the 「Prosecutors' Office Act」. Provided that, this does not apply in any of the following cases.
1. Where, after the appeal led to a reopened investigation, notice is again received that charges will not be brought
2. Where 3 months have passed after the appeal was filed without any disposition being made on it
3. Where the prosecutor does not bring charges by 30 days before the expiration of the statute of limitations for prosecution
③A person who intends to file an application for adjudication under paragraph (1) shall submit the application for adjudication to the Chief Prosecutor of the District Prosecutors' Office or the head of the branch office within 10 days from the date of receiving notice of the decision dismissing the appeal or from the date on which a ground under each subparagraph of paragraph (2) arose. Provided that, in the case of paragraph (2) subparagraph 3, the application for adjudication may be submitted up to the day before the expiration of the statute of limitations for prosecution.
④ The application for adjudication shall state the grounds that make the application well-founded, such as the criminal facts and evidence of the case that is the subject of the application.
An application for adjudication on a suspended indictment may be filed with the High Court that has jurisdiction over the seat of the District Prosecutors' Office to which the prosecutor who issued the suspended indictment belongs, and the appeal procedure must be completed beforehand.
A High Court that has accepted an application for adjudication must, if it finds the application well-founded, decide to bring charges on the case concerned.
Attorneys Specializing in Suspended Indictments
Because a suspended indictment means the case does not go to trial, from the suspect's perspective receiving one means the case is closed and no punishment is imposed.
Accordingly, a suspect will want to obtain a suspended indictment with respect to the criminal facts, and it is therefore advisable to show the prosecutor that there are mitigating reasons in how the offense came about and that one is genuinely remorseful. Having the help of an attorney experienced in suspended indictments at this stage puts you in a stronger position to obtain one.
On the other hand, a complainant or accuser who considers it unfair for the suspect to receive a suspended indictment must seek to have it canceled through the appeal system or an application for adjudication. However, because the prosecutor already concluded there were grounds to grant the suspended indictment, overturning it can be very difficult. For this reason, the help of an experienced attorney is likely to be needed.
In this way, an attorney experienced in suspended indictments can assist both the suspect and the complainant or accuser with cases involving a suspended indictment.
