The Discovery of Criminal Evidence in South Korea

Abstract

In 2008, as part of a judicial reform, a so-called law school system was introduced and the participatory trial in which citizen participants serve as jurors was implemented in South Korea. With the implementation of the new participatory trial, there has been a major reform in the Criminal Procedure Act which includes the discovery of evidence. The discovery of evidence refers to a system in which litigant parties present their evidence to their opposing parties prior to the public trial. This article provides an analysis of the discovery of evidence and addresses issues concerning this new system. In this article, I emphasize that the discovery of evidence is a system that ensures a fair trial, not just a procedure in which the prosecutors and defendants fight and struggle against each other. I also stress that the discovery of evidence is a premise for success of the new participatory trial in Korea and that it is oriented toward the concentrative examination. In addition, I provide a chronological review of the revision processes in the Criminal Procedure Act and suggest that the discovery of evidence is a full recovery of the counsel’s right to examine and copy all the relevant documents, articles, and papers relating to witnesses. I also provide an overview of the current discovery of evidence in South Korea by describing the discovery of evidence processes both for counsels and prosecutors, and an explanation on the decisions of the Constitutional Court and the Supreme Court when the prosecutor does not execute the court’s order. Finally, I point out several issues derived from the misunderstanding of the discovery of evidence and urge a revision in the law.