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[LAW TALK]Judicial reform

by: Jimmy "Chuck" O'Berluti , Eugene Young , Kenneth Walsh

[LAW TALK]Judicial reform: accusers need right to court review of no-indictment decisions 
This week I would like to take up an aspect of judicial reform briefly mentioned in last week's column. One of the recommendations from the Presidential Committee on Judicial Reform is for the expansion of accusers' rights for court reviews of indictments.
Although this recommendation has received much less media attention than law education reform, it is by no means less important in terms of potential impact.

In Korea, the authority to indict has rested exclusively with the public prosecutor's office with very limited exceptions.

Currently, only in cases where a public official is accused of abuse of power, such as illegal arrest and torture, the accuser has the right to ask a court to review the appropriateness of a no-indictment decision.

Also, in cases specifically related to constitutional rights, such as equal protection, the accuser may file an appeal with the Constitutional Court.

Otherwise, the accuser may appeal to a higher-ranking public prosecutor to review the suitability of a no-indictment decision with respect to any crime, which is an internal review process within the same agency.

In contrast, the committee's recommendation would allow accusers to request a court review of no-indictment decisions for any crime.

As an arm of the executive branch, public prosecutors balance the power of the judiciary in enforcing laws and with the National Assembly which creates the laws.

Prosecutors have significant power since they have the ability to decline indictments if they consider evidence to be insufficient or if they deem the alleged criminal conduct not worthy of punishment through criminal procedure.

This powerful and exclusive authority granted to public prosecutors is intended to ensure fairness and flexibility in the furtherance of criminal justice policy.

Yet, such power can result in the arbitrary application of criminal law and the abuse of the criminal justice system by the executive branch.

The presidential committee's recommendation takes into account reported public dissatisfaction with respect to outcomes from the exclusive indictment power of public prosecutors.

As the recommendation is intended to grant accusers the opportunity to challenge all public prosecutor no-indictment decisions, the implementation of the proposed change should add congestion to the caseload of courts.

To minimize abuses, the presidential committee recommended that courts shall have an accuser bear all or part of the expenses when challenges are found groundless.

However, this requirement needs balanced application to avoid being too oppressive since the intention is for those less persuasive in society to benefit from the process.

In addition, the issue has a sensitive aspect since the balance between the executive and judicial branches must be prudently maintained.

Keeping this in mind, the presidential committee recommended requiring that, before activating the process, accusers would have to file an appeal with a higher-ranked prosecutor for review of a no-indictment decision unless the decision had already gone through such an appeal process.

Nevertheless, it does not clear up all doubts about how well the courts could judge the suitable implementation of the prosecution's discretionary power.

The National Assembly should carefully examine the potential implications of the Presidential Committee's recommendation before turning it into law. Also, if the recommendation is adopted as is, the courts will have to develop a sensible standard of review.

Cho Chi-hyoung is a partner and an attorney at Hwang Mok Park P.C., one of Korea's leading law firms. HMP provides effective legal solutions that allow its clients to adapt and thrive in Korea's rapidly changing business environment. Tel: (02) 772-2700. Email: - Ed.

By Cho Chi-hyoung


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