Criminal Defense in Korea: Trial Phase | Guide for Foreigners
After indictment, the case moves from investigation to trial. Most Korean criminal trials are bench trials (one or three judges). A limited jury system exists, but jury verdicts are advisory, not binding. This guide, prepared by an English-speaking lawyer in Korea, explains trial stages, appeals, and why building a strong criminal defense in Korea at the district court matters most. For the earlier steps with police and prosecutors, see Criminal Defense in Korea: Investigation Phase | English-Speaking Lawyer’s Guide.
Indictment Types: Summary vs. Formal
When the prosecution believes that a suspect is guilty of the charged crime and files an indictment, the indictment will take one of two forms: 1) a summary indictment; or 2) a formal indictment.
- Summary Indictment: When the prosecutor deems the charged crime a minor offense (such as a crime punishable by a fine rather than imprisonment), they may request a summary order from the court. In such cases, the judge reviews the case solely through documents, without a hearing. If the judge agrees that the fine requested by the prosecution is appropriate, a summary order is issued. If the defendant pays the fine, the case is closed. However, if the defendant (or prosecutor) disagrees with the summary order and wishes to contest it, they may request a formal trial within seven days of receiving the summary order, at which point the case will proceed to a full trial.
- Formal Indictment: A formal indictment initiates a full court trial where the defendant must appear. This usually (but not always) indicates the prosecution is seeking a sentence of imprisonment. However, the court is not bound by the prosecutor’s recommendation and will consider all circumstances of the case, including the defense arguments. This is why having a skilled attorney is crucial to advocate for a favorable outcome.
What Happens in a Formal Trial (Three Stages)
A trial hearing in Korea generally consists of three main stages: the opening procedures, the examination of evidence (fact-finding), and the closing and delivery of the sentence.
Opening Procedure
At the first hearing, the judge informs the defendant of their right to remain silent and confirms their identity by asking their name and other details. Next, the prosecutor delivers an opening statement by reading aloud the charges stated in the indictment. This is followed by the defendant’s opening statement, where they state whether they admit to the charges.
If the defendant admits to the charges (i.e., confesses), the court may directly schedule a sentencing date under the summary trial procedure without conducting a separate evidentiary hearing. However, if the defendant denies the charges and, as a result, does not consent to some of the evidence, the court will schedule a hearing to examine the evidence.
Fact-Finding Procedure (Examination of Evidence & Witnesses)
This is a critical stage in a contested trial. When a defendant denies the charges, as part of a strategic defense, a defendant will typically object to the admissibility of unfavorable written evidence, such as police interrogation records or witness statements. In such cases, the prosecutor typically requests the court to summon witnesses to prove the evidence in open court.
For example, if a victim gave a statement against the defendant during the investigation phase, Korean law prohibits the use of that written record as evidence at trial if the defense objects. In such cases, the prosecutor must summon the victim to testify in court as a witness. The prosecution will conduct a direct examination, after which the defense lawyer gets to cross-examine the witness. The judge observes this entire process to assess the witness’s credibility and determine the weight of their testimony.
Closing and Sentencing
At the final hearing, the prosecutor delivers a sentencing recommendation to the court, and the defense gives its closing argument. The judge then schedules a separate date for sentencing (usually a few weeks later) which the defendant is required to attend.
Appeals: High Court Trial
Should a defendant be dissatisfied with the District Court’s judgment, they may file an appeal within seven (7) days.
A major difference in Korean criminal procedure compared to common law countries is that the prosecutor can also appeal the judgment. This often happens if: the defendant is acquitted; the sentence is significantly lighter than what the prosecutor sought; or a suspended sentence was granted instead of actual imprisonment despite the absence of a settlement with the victim.
If the appellate court finds the original judgment was erroneous, the general principle is to quash (i.e., overturn) the original judgment and render a new judgment.
Appeals: Supreme Court Trial
Either party dissatisfied with the appellate court’s judgment may appeal to the Supreme Court within seven (7) days.
The Supreme Court functions as a court of law, meaning it only reviews legal issues. Therefore, appeals based on factual errors or claims of unfair sentencing are generally not permitted. Although most of the cases that go to the Supreme Court rarely get overturned, if the Supreme Court does overturn a decision, the principle is to remand the case to the lower court for a new trial.
Given that higher courts seldom overturn lower court judgments, building the strongest possible case at the District Court is crucial. The first-instance trial offers the broadest scope for review and is the most critical stage for establishing the facts of your case.
Practical Advice for Foreign Defendants
- Interpreter rights: Request a qualified interpreter for all hearings.
- Attendance & decorum: Be punctual; follow courtroom protocol.
- Mitigation package: Prepare evidence of remorse, rehabilitation, and settlement, if relevant.
- Consistent defense theory: Coordinate with counsel to maintain a clear narrative across hearings.
Why an English-Speaking Lawyer Matters for Criminal Defense in Korea
A bilingual lawyer for criminal defense in Korea helps you understand the process, challenges inadmissible evidence, secures favorable witness handling, and strategizes for the best outcome. If you are a foreigner facing charges in Korea, our English-speaking lawyers are ready to help. Contact Kang & Shin for assistance.