In the Korean criminal justice system, minor cases often go through a quicker process called a " Summary Order" (약식명령).
This process, used mainly for cases involving fines or other minor penalties, allows the court to issue a penalty without a formal trial(ordinary proceedings of trial ).
CRIMINAL PROCEDURE ACT
| (1) | In a matter coming within its jurisdiction, a district court may, on a prosecutor's demand, impose a fine, minor fine, or confiscation upon the criminal defendant by a summary order without ordinary proceedings of trial. |
| (2) | In the case of the preceding paragraph, additional collections and other accessory dispositions may be effected. |
However, not everyone fully understands how this works or their rights within the process.
Here, we’ll break down the key points of Summary Orders in Korean criminal law, what they mean for defendants, and the options available if the defendant disagrees with the outcome.
When a prosecutor believes a case only requires a minor penalty, such as a fine, they can request a Summary Order from the court.
This is typically done in situations where a formal trial isn't deemed necessary.
To initiate this process, the prosecutor submits an indictment that includes the defendant's details, the crime in question, the relevant laws, and the proposed penalty amount.
CRIMINAL PROCEDURE ACT
Once the prosecutor files the request, the court reviews it and, if it agrees with the prosecutor’s assessment, issues the Summary Order.
This order can impose fines, confiscations, or other minor penalties.
However, under Article 450 of the Korean Criminal Procedure Act, if the court finds that a case requires a more thorough examination, it can reject the Summary Order request and instead initiate a full trial.
CRIMINAL PROCEDURE ACT
Article 450 (Ordinary Adjudication)
If it is considered that a case does not admit of a summary order being issued or that it is not proper to do so, trial shall be conducted in accordance with the ordinary proceedings.
The judge has the discretion to decide whether the case should proceed through a formal trial based on the circumstances and evidence.
If a defendant disagrees with a Summary Order, they have the right to request a formal trial within seven days from the day on which he/she has received notification of a summary order
CRIMINAL PROCEDURE ACT
Article 453 (Demand for Formal Trial)
(1) A prosecutor or the criminal defendant may apply for formal trial within seven days from the day on which he/she has received notification of a summary order: Provided, That a criminal defendant may not waive his/her right to demand formal trial.
(2) An application for formal trial shall be made in writing to the court which has issued the summary order.
(3) When an application for formal trial has been made, the court shall promptly notify the fact to the prosecutor or the criminal defendant.
Article 457-2 of the Korean Criminal Procedure Act restricts the court from imposing a harsher “type” of penalty in the formal trial than what was issued in the Summary Order.
CRIMINAL PROCEDURE ACT
Article 457-2 (Prohibition of Judgment Disadvantageous to Criminal Defendant)
(1) Where a criminal defendant has applied for a formal trial, no penalty of a kind heavier than that imposed by the summary order shall be pronounced. <Amended on Dec. 19, 2017>
(2) Where a criminal defendant has applied for a formal trial, if a penalty of a kind heavier than that imposed by the summary order is pronounced, the reason for such sentencing shall be stated in the judgment document. <Newly Inserted on Dec. 19, 2017>[This Article Wholly Amended on Dec. 29, 2017]
For example, if the initial order imposed a fine, the court cannot later impose imprisonment.
However, the court may increase the fine amount based on the evidence and arguments presented during the formal trial.
This restriction on harsher penalties only applies if the defendant requested the formal trial.
If the case proceeds to a formal trial because the judge decided to do so independently, this restriction does not apply.
In these cases, the court can impose a harsher penalty if it sees fit, such as a prison sentence instead of a fine.
Summary Orders are a streamlined process that can save time and effort for minor cases in Korean criminal law.
However, for defendants who believe they are wrongly penalized, understanding the right to request a formal trial and the timeline to do so is crucial.
Consulting a legal expert can help ensure the best possible outcome, especially if there are grounds for a defense.
Remember, quick action and informed decisions can make a big difference in navigating the Summary Order process in Korea.
※ All content posted on this blog is intended to provide general legal information. The application of the law may vary depending on the specific circumstances of each case, so please consult with an attorney for detailed legal advice before making any decisions based on the content of this blog. Please be advised that this blog assumes no legal responsibility for any issues that may arise from the use of the information obtained here.
