After the appeal brief is submitted, the criminal appeal moves into the hearing stage. A criminal appeal hearing in Korea can be short or lengthy depending on the case. If the defendant admits the charge and only argues that the sentence is too heavy, the case may conclude relatively quickly. If the defendant denies the charge or challenges the first-instance court’s fact-finding, the appeal may require additional evidence, witness examination, or further written submissions.
This article explains what happens after the appeal brief is filed, how the first appeal hearing usually proceeds, and what types of appellate decisions may be issued.
Can the Appellate Court Examine New Evidence?
A Korean criminal appeal is not simply a second first-instance trial. The appellate court primarily reviews the issues raised in the appeal brief, although it may also examine matters affecting the judgment on its own initiative.
Evidence that could have been admitted at the first-instance court may also be used in the appellate court. In practice, however, the appellate court will consider whether additional evidence examination is necessary to resolve the disputed issues.
For example, in a hypothetical sex offense case, a motel employee may have observed the alleged victim’s condition around the time of the incident but may not have been examined at the first trial.
When Is the First Appeal Hearing Scheduled?
The timing of the first appeal hearing depends on several factors, including the type of case, whether the defendant is detained, the court’s schedule, and the complexity of the issues.
If the defendant is currently in custody, the case will be handled more promptly because appellate detention is subject to statutory time limits. Under the Korean Criminal Procedure Act, detention is calculated in two-month periods and may be renewed only within the limits prescribed by law. Limited additional renewals may be permitted at the appellate level where further hearings are unavoidably necessary.
In a non-custodial case, the same degree of urgency does not arise, and the first appellate hearing may be scheduled several months after the appeal brief is submitted.
Beyond custody status, the substance of the appeal itself dictates the rhythm of the court’s calendar. If the appeal is strictly contesting the severity of the punishment (arguing for leniency or a suspended sentence), the court can review these quickly, leading to a faster hearing date. Cases that involve complex factual disagreements, requests to introduce new evidence, or applications for witness testimony will extend the hearing timeline.
What Happens at the First Appeal Hearing?
At the beginning of the first appellate hearing, the court generally confirms the defendant’s identity and advises the defendant of the right to remain silent. The court then identifies the issues raised on appeal and confirms the parties’ positions and evidence requests.
The appellant or counsel then summarizes the principal grounds of appeal. This ordinarily does not require the entire appeal brief to be read aloud.
The hearing then proceeds differently depending on whether the defendant admits the charge or denies it.
If the Defendant Does Not Dispute Guilt
If the defendant does not dispute guilt and appeals primarily on the ground that the sentence is excessive, sentencing will ordinarily be the central issue in the appellate proceedings.
In this type of case, the first appeal hearing may sometimes be enough to close the arguments. The court may then set a sentencing date several weeks later.
The typical order may include: defendant questioning, if necessary; prosecutor’s opinion; defense counsel’s final argument; defendant’s final statement.
Defendant questioning is not always required. It may be useful if the defendant needs to explain the background of the case, efforts to settle with the victim, remorse, family circumstances, treatment, or steps taken to prevent recurrence.
However, if defendant questioning may create unnecessary risk or does not add meaningful information, it is better for the defense not to request it.
Defendant’s Final Statement
The defendant’s final statement is usually brief. In many cases, it is better to speak for one or two minutes rather than give a long speech. The statement should sound sincere, not defensive.
The defendant should be careful not to blame the victim or make statements that sound like excuses.
If the Defendant Denies the Charge
If the defendant denies the charge, the appeal hearing may become more complex.
At the first appeal hearing, the court may decide whether to accept evidence requests such as witness examination, fact inquiry, expert opinion, or field inspection.
If the court accepts the evidence request, the case will usually continue to another hearing. The appellate court will then conduct the additional evidence examination and allow the parties to argue the meaning of that evidence.
In this type of case, the defense argument should not be limited to asking for leniency. The defense must identify the problems in the first-instance judgment, such as: mistake of fact; error of law; unreasonable evaluation of evidence; insufficient proof beyond a reasonable doubt; use of inadmissible evidence; and failure to consider important evidence.
Closing of the Hearing and Judgment Date
When the court determines that no further evidence examination is necessary, it closes the hearing and sets a date for the pronouncement of judgment. The judgment date is often scheduled several weeks later, although the exact timing depends on the court and the circumstances of the case.
On the judgment date, the appellate court announces its decision.
Possible Decisions by the Appellate Court
If the appellate court concludes that the appeal is without merit, it may dismiss the appeal, leaving the first-instance judgment in place.
If the court finds that a ground of appeal is valid, it may quash the first-instance judgment and enter a new judgment. Depending on the issues involved, the new judgment may change the sentence, acquit the defendant, or otherwise modify the first-instance decision.
The Rule Against Disadvantageous Change
If an appeal is filed only by the defendant or on the defendant’s behalf, the appellate court may not impose a more severe sentence than the sentence imposed by the first-instance court. This is known as the rule against disadvantageous change.
However, if the prosecutor also appeals, this protection does not prevent the appellate court from imposing a heavier sentence. It is therefore important to determine who filed an appeal and which grounds each party raised. This is one reason why it is important to review who appealed and what grounds were raised.
If the appellate judgment is unfavorable, the next possible step may be a further appeal to the Supreme Court. However, a Supreme Court appeal is different from an ordinary criminal appeal because it is generally focused on legal issues rather than a full re-examination of the facts. For more details, see our guide on criminal appeal to the Supreme Court in Korea.
Final Thoughts
A criminal appeal hearing in Korea can be simple or complex depending on the issues raised. If the case is mainly about sentencing, the key may be settlement, remorse, recovery of damage, and changed circumstances after the first-instance judgment. If the case involves disputed facts or legal issues, the key may be identifying the first-instance court’s errors and presenting evidence that the appellate court will actually consider.
If you are involved in a criminal appeal hearing or need assistance preparing your case, representation by an experienced criminal defense lawyer in Korea can be critical to protecting your rights and presenting an effective appeal. For broader assistance from an English-speaking lawyer in Korea, you can contact Kang & Shin to discuss your case. You can also review our Professionals page to learn more about our attorneys’ background and experience.
