Types and Contents of Non-Indictment Measures
What does taking “non-indictment measures” mean ?- The prosecutor takes “non-indictment measures” when he/she does not file public prosecution. Types of non-indictment measures include suspension of indictment, being cleared of suspicion, being innocent, having no right of arraignment, or dismissal (Collection of Legal Terms and Cases, By the Ministry of Government Legislation and Korea Legislation Research Institute, 2003).
Suspension of Indictment- If it turns out that the suspect has committed the suspected crime, but the following matters make impeachment unnecessary, the prosecutor may “suspend the indictment” (Article 69, paragraph 3, subparagraph 1 of the Regulations on Prosecutory Affairs and Article 51 of the Criminal Act).
· The criminal’s age, personality, conduct, intelligence, and affiliated environment
· Relationship with the victim
· Crime motivation, method, and result
· Circumstances after committing the crime
- Suppose the prosecutor suspends the indictment of the case. Apart from minor offenses, the prosecutor shall strictly discipline the suspect and make him/her write a pledge to reform his/her character (Article 71, paragraph 1 of the Regulations on Prosecutory Affairs).
- For juvenile suspects, the prosecutor takes measures for guidance and protection when “suspending the indictment for guidance” (Article 71, paragraph 3 of the Regulations on Prosecutory Affairs).
No-suspension- No-suspension (Not recognized as a crime)
· If the suspect’s act is not categorized as a crime or nor recognized as a crime, the prosecutor concludes the case as “no-suspension (not recognized as a crime)” (Article 69, paragraph 3, subparagraph 2, item A of the Regulations on Prosecutory Affairs).
- No-suspension (Insufficient evidence)
· If there is not enough evidence to recognize the suspect to have committed a crime, the prosecutor concludes the case as “no-suspension (insufficient evidence)” (Article 69, paragraph 3, subparagraph 2, item B of the Regulations on Prosecutory Affairs).
- If the prosecutor concludes the accused or charged case as “no-suspension,” he/she shall determine whether the accuser or informant has been proven to be innocent or not (Article 70 of the Regulations on Prosecutory Affairs).
Not Validated as a Crime- Suppose the suspect’s act falls under elements constituting a crime, but there is a legal reason to exclude the crime from validation. In this case, the prosecutor concludes the case as “not validated as a crime” (Article 69, paragraph 3, subparagraph 3 of the Regulations on Prosecutory Affairs).
No Right of Arraignment- If the case falls under any paragraph below, the prosecutor concludes the case as “no right of arraignment” (Article 69, paragraph 3, subparagraph 4 of the Regulations on Prosecutory Affairs).
· If the judgment of the court has been finalized.
· If the notification disposition is being proceeded.
· If protective disposition has been confirmed (excluding canceled protective disposition cases sent forward to the prosecutor’s office) under the Juvenile Act, Act on Special Cases Concerning the Punishment, Etc. of Crimes of Domestic Violence, Act on the Prevention of Commercial Sex Acts and Protection, Etc. of Victims, or Act on Special Cases Concerning the Punishment Etc. of Child Abuse Crimes.
· If amnesty is granted.
· If the prescription of public prosecution has been completed.
· If the penalty has been abrogated after the criminal case due to legal modification or abolition.
· If the penalty has been exempted under law.
· If there is no criminal jurisdiction to exercise over the suspect.
· If the prosecution on the same case has been filed (However, the case can be indicted if other critical evidence are found).
· If the prosecution on the same case has been filed or canceled (However, the case can be indicted if other critical evidence are found).
· If there has been no accusation or charges pressed , or if the accusation or charges pressed has been canceled or invalidated for a crime subject to the victim’s complaint or subject to a public officer’s report.
· In the case of crimes not prosecuted against objection, if the victim expresses his/her will not to penalize the assailant or if the victim’s will of penalizing the assailant has been withdrawn.
· If the suspect has passed away, or if the juridical person (the suspect) is no longer alive.
Dismissal- If the case falls under any paragraph below, the prosecutor concludes the case as “dismissed” (Article 69, paragraph 3, subparagraph 5 of the Regulations on Prosecutory Affairs).
· If the accuser’s or informant’s statement or written statement clearly indicates that the suspect has “no-suspension,” or the case is “not validated as a crime.”
· If a person accuses or presses charges against the lineal ascendant of the principal himself/herself or his/her spouse.
· If a person files an accusation again for a withdrawn case of accusation.
· If the prosecutor concludes “non-indictment” for the same case. (However, the case is not dismissed if the accuser or informant finds new critical evidence and requests for an explanation for it.)
· If accused by a person apart from the person entitled to file a complaint.
· If the accuser or informant refuses to comply with the request to attend after filing a complaint or submitting a written accusation, or if the accuser or informant is missing and cannot make statements.
· If the accused or charged person is deemed to have a minor responsibility for the case when considering the seriousness and details of the accused/charged case and the relationship between the accused/charged person and the accuser and informant. This also applies if there is little or no public interest to investigate and take proceedings, making the investigation unnecessary.
· If there is not enough concrete circumstantial evidence or reason to initiate the investigation. Examples include media reports that lack authenticity, contents on the Internet, website posts, anonymous reports, messages, or hearsay by a third party not directly involved with the reported case, or if the informant only suspects but has no evidence for his/her assumption.