A criminal appeal to the Supreme Court in Korea (known as sanggo (상고) in Korean), is fundamentally different from an ordinary appeal to an appellate court.
In the first appeal (known as hangso (항소) in Korean), the appellate court may review factual findings, evidence, legal issues, and sentencing. The Supreme Court, by contrast, generally focuses on whether the appellate judgment contains a legal error that affected the result.
Foreign defendants should therefore not approach a Supreme Court appeal as another opportunity to retry the entire case. The appeal must identify a legally recognized ground and explain precisely why the appellate judgment should be reversed.
Readers looking for information about the earlier appellate stage, including hearings, evidence requests, oral arguments, and final statements, should see our following articles:
- Criminal Appeal Brief in Korea: Deadlines and Key Grounds
- Criminal Appeal Hearing in Korea: What Happens After the Appeal Brief?
How Is a Supreme Court Appeal Different?
The Supreme Court is generally described as a court of law rather than a court of fact.
Questions such as whether a witness was credible, whether the defendant actually committed a particular physical act, or which version of events is more persuasive are ordinarily resolved during the first-instance and appellate proceedings.
A Supreme Court appeal instead focuses on questions such as:
- whether the lower court applied the correct legal standard;
- whether the recognized facts legally satisfy the elements of the offense;
- whether evidence was admitted or excluded contrary to law;
- whether search-and-seizure procedures violated applicable legal requirements; or
- whether the appellate judgment conflicts with a controlling legal principle.
Supreme Court criminal cases are generally reviewed through the appellate judgment, the case record, and written submissions. The Criminal Procedure Act permits the Supreme Court to decide a case without oral argument, making the written grounds of appeal particularly important.
Two Deadlines That Must Be Distinguished
A Supreme Court criminal appeal involves two separate deadlines.
1. Seven Days to File the Appeal
The notice of appeal must generally be filed within seven days after the appellate judgment is pronounced. In criminal proceedings, the period is calculated from the pronouncement of judgment, not from later service of the written judgment.
The appeal must be filed with the appellate court that issued the judgment, rather than directly with the Supreme Court.
2. Twenty Days to Submit the Grounds of Appeal
After the Supreme Court receives the case record, it sends the appellant or defense counsel a notice confirming receipt of the litigation record.
The appellant generally has 20 days from receipt of that notice to submit the written grounds of appeal to the Supreme Court. Failure to submit the brief within the deadline will result in dismissal of the appeal without substantive consideration of the case.
The seven-day appeal deadline and the later 20-day briefing deadline should therefore not be confused.
What Are the Permitted Grounds for Appeal?
The grounds for a Supreme Court appeal are limited under the Korean Criminal Procedure Act. They may include:
- violation of the Constitution, a statute, a regulation, or a rule that affected the judgment;
- abolition or modification of the applicable punishment, or a pardon issued after judgment;
- circumstances constituting a legally recognized ground for retrial; or
- in cases involving the death penalty, life imprisonment, or imprisonment for at least ten years, a serious factual error affecting the judgment or a clearly unreasonable sentence.
For most ordinary criminal cases, a defendant cannot obtain Supreme Court review merely by arguing that the punishment is too severe. The Supreme Court has repeatedly held that sentencing complaints are proper Supreme Court grounds only in cases meeting the statutory punishment threshold.
Similarly, arguments such as “the witness was lying,” “the sentence is unduly harsh in light of my circumstances,” or “the appellate court incorrectly assessed the evidence” will ordinarily be insufficient unless they raise a genuine legal issue.
A factual or evidentiary complaint must be connected to a recognized legal error, such as misapplication of the elements of an offense, violation of evidentiary rules, or departure from the governing legal standard.
How Should the Grounds of Appeal Be Structured?
A persuasive Supreme Court brief should normally do five things:
1. Identify the material findings made by the appellate court.
2. State the legal rule governing the issue.
3. Cite the relevant statute or Supreme Court precedent.
4. Explain how the appellate court misunderstood or misapplied that rule.
5. Show why the error affected the judgment.
A brief should not simply collect quotations from unrelated decisions. It should connect the facts recognized by the appellate court with the relevant legal principle and identify the specific point at which the court’s reasoning became legally incorrect.
Examples of Issues That May Reach the Supreme Court
The appropriate issue depends on the nature of the criminal charge.
In a fraud case, the dispute may concern whether the conduct legally constitutes deception or whether the recognized facts support fraudulent intent.
In a breach-of-trust case, the question may be whether the defendant occupied the type of legally protected fiduciary position required for criminal liability.
In a sex-offense case, the issue may concern the proper interpretation of the elements of the offense, the applicable standard for intent, or the legal significance of the circumstances recognized by the appellate court.
In a digital-evidence case, the appeal may concern the legality of a search and seizure, the admissibility of electronic evidence, or compliance with procedural safeguards.
These are questions of law, not mere requests for the Supreme Court to reweigh the evidence or reconsider which evidence is more persuasive.
Possible Outcomes
A Supreme Court criminal appeal may result in several outcomes.
Dismissal by Decision
The appeal may be dismissed by decision when a required procedural step has not been completed, such as when no proper grounds of appeal have been submitted within the statutory period.
Dismissal by Judgment
The Supreme Court may review the arguments but conclude that the appellate judgment contains no reversible legal error. In that situation, it dismisses the appeal and the appellate judgment becomes final.
Reversal and Remand
When the Supreme Court identifies a legal error that may have affected the outcome, it may reverse the appellate judgment and return the case to the appellate court. (This is known as pagi-hwansong (파기환송) in Korean). The remand court then considers the case again in accordance with the Supreme Court’s legal ruling and issues a new judgment.
Common Mistakes
A common mistake is treating the Supreme Court as a third fact-finding trial. Repeating arguments about witness credibility or asking the Court to reconsider the entire evidentiary record is unlikely to be effective without a proper legal ground.
Another mistake is relying solely on sentencing unfairness in a case that does not meet the statutory threshold for a sentencing appeal.
A further problem is raising a new issue that was never presented to or considered by the appellate court. Depending on the circumstances, an argument that was not part of the appellate proceedings may not constitute a proper Supreme Court ground.
Final Thoughts
A criminal appeal to the Supreme Court in Korea is not simply another opportunity to argue that the lower court reached the wrong factual conclusion. The central question is whether the appellate judgment contains a legally recognized error that affected the result. Because the permitted grounds are limited and the briefing deadline is strict, the appellate judgment and case record should be reviewed promptly after judgment.
For related representation, visit our English-speaking criminal attorney in Korea page.
Foreign clients seeking an English-speaking lawyer in Korea can visit the Kang & Shin homepage or contact our office to discuss the available appellate options.
Information about the qualifications and experience of our attorneys is available on our Professionals page.
