The double jeopardy protection afforded by the Korean Constitution in Article 13 is applied in a different manner than in, most, common law nations. The application of Double Jeopardy, in Korea, allows the prosecution to have three chances to obtain a guilty verdict.
Double Jeopardy in United States versus in South Korea
In the United States, a defendant may not be tried for the same or similar offense, within a specific jurisdiction, when a “conclusion” is made in any court.
Thus, if a jury or judge finds a defendant not guilty, the prosecution may not bring the same or similar charges against the defendant in that jurisdiction for the same or similar crime. This is a right protected within state constitutions and by the 5th Amendment to the United States Constitution that notes, in part, that: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb. . ..”
However, if all jury members are unable to come to the same conclusion (thus, some vote guilty and some not guilty), the jury is deemed “hung” and the prosecution may request another trial.
Double Jeopardy Protection in Korea
Double Jeopardy protection is iterated in Article 13(1) of the Korean Constitution that notes that: “No citizen shall be prosecuted for an act which does not constitute a crime under the law in force at the time it was committed, nor shall he be placed in double jeopardy.”
In Korea, the rules is, essentially the same, however, the application of the “conclusion” determination is different. A “conclusion” of the case is, only, deemed when the Supreme Court makes a final a decision or the prosecutor chooses not to appeal a decision. Thus, the prosecutor has, in most instances the District Court, the High Court (or three judge panel in District Court) and the Supreme Court to establish the guilt of a defendant. Thus, the Prosecution, in Korea, gets to take three bites of the apple.
An exception, to this Korean Double Jeopardy rule, is with those under the U.S.-Korea Status of Forces Agreement (SOFA) that are prosecuted in Korea. The SOFA protects the right to American-style double jeopardy. However, we have seen cases where the prosecutor has appealed, thus, placing the burden on the court to dismiss the case based on SOFA grounds.
Other articles on Korean criminal law that may be interest.
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Sean Hayes may be contacted at: [email protected].
Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw.
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