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Victim and Assailant Involved with Violence and Injury
Significance of Criminal Indemnity
Significance of Criminal Indemnity- “Criminal indemnity” refers to the nation compensating for damages to a person falsely accused, and thus confined or sentenced to a punishment by the mistake of the criminal justice concerned (Collection of Legal Terms and Cases, By the Ministry of Government Legislation and Korea Legislation Research Institute, 2003).
Requirements of Criminal Indemnity Requirements of Compensation- Suppose the defendant was confirmed innocent in any of the following legal procedures specified under the Criminal Procedure Act after suffering pre-trial detention or confinement. In this case, the defendant may claim the nation for criminal indemnity (Article 28 of Constitution of the Republic of Korea and Article 2, paragraph 1 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
· General Procedures
· Retrial Procedures
· Emergency Appeal Procedures: This procedure refers to the defendant filing an appeal to the Supreme Court when discovering that the case’s confirmed judgment had violated laws and regulations (Article 441 of the Criminal Procedure Act).
· Appeal Procedures to Recover Appeal Rights
- If falling under any of the following cases, the defendant may claim the nation for criminal indemnity, even without being judged innocent (Article 26 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
· Suppose the absolution of public action or prosecution dismissal was confirmed and determined under the Criminal Procedure Act, but the defendant had no reason to stand trial for such reasons. If the defendant has a justifiable and apparent reason to be acquitted, he/she shall claim for criminal indemnity.
· If the innocence was proved for the person who received an independent claim for medical treatment and custody, or if there is no evidence that the person committed the crime, and the claim dismissal was determined and confirmed eventually.
No Compensation for the Following Cases- If falling under any of the following cases, the court may decide not to compensate or reduce the compensation amount (Article 4 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
· If the defendant was determined innocent solely because he/she was a criminal minor.
· If the defendant was determined innocent because he/she was unable to distinguish objects or make decisions due to a mental or physical disability.
· If the defendant is recognized to have made a false confession to ruin the investigation or trial, or was indicted, received pre-trial detention, or stood in trial with fabricated criminal evidence.
· If the defendant was partially guilty for multiple offenses.
Determination of the Criminal Indemnity Amount Determination of the Criminal Indemnity Amount- The criminal indemnity amount is calculated according to the number of confinement days. The compensation amount shall be more than the daily minimum wage under the Minimum Wages Act in the year when the indemnity was claimed, and less than fives times the minimum wage during confinement. The criminal indemnity shall be charged by each confinement day (Article 5, paragraph 1 of the Act on Criminal Compensation and Restoration of Impaired Reputation and Article 2 of the Enforcement Decree of the Act on Criminal Compensation and Restoration of Impaired Reputation).
- The court shall consider the following matters when calculating the criminal indemnity (Article 5, paragraph 2 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
· Type and Period (Long-term/short-term) of the Confinement
· Property damage, profits to be received, or mental and physical damage suffered during the confinement period
· Whether each institution, including the police station, prosecutors’ office, and court, intentionally or erroneously made a mistake
· The substantial reason why the defendant was acquitted
· Any other relevant reasons related to calculating the compensation amount
Claiming Criminal Indemnity Person Entitled to Claim Criminal Indemnity- The person entitled to claim criminal indemnity is the person concerned (Article 2, paragraph 1 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
- Suppose the person entitled to claim criminal indemnityㅡthe person concernedㅡpasses away before claiming criminal indemnity and after being confirmed innocent. In this case, the inheritor becomes the person entitled to claim criminal indemnity (Article 3, paragraph 1 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
- However, suppose the deceased person was determined innocent in a retrial or emergency appeal. In this case, it is deemed that the person passed away when judged innocent. Therefore, the inheritor at the time when the person concerned passed away shall be the one entitled to claim criminal indemnity (Article 3, paragraph 2 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
How to Claim Criminal Indemnity- Competent Court: The court that made the acquittal judgment (Article 7 of the Act on Criminal Compensation and Restoration of Impaired Reputation)
- Period to Claim: Three years from the date when the acquittal judgment was known, or five years from the date when the acquittal judgment was confirmed (Article 8 of the Act on Criminal Compensation and Restoration of Impaired Reputation)
- Documents to Submit (Articles 9 and 10 of the Act on Criminal Compensation and Restoration of Impaired Reputation)
· Invoice for Indemnity: The invoice shall indicate the claimant’s registered enrollment criterion, address, name, date of birth, factual information of the reason of claim, and the compensation amount.
· Certified copy of the count records of acquittal judgment
· Certificate of the confirmation of acquittal judgment
· Data indicating persons’ relationship with the person concerned, such as priority inheritance (If the inheritor claims for indemnity)
- The legal representative of the person concerned may also claim criminal indemnity (Article 13 of the Act on Criminal Compensation and Restoration of Impaired Reputation)
Cancellation, Suspension, and Succession of the Claim- Cancellation of the Claim
· If the person entitled to claim the criminal indemnity cancels claiming the criminal indemnity, he/she shall not claim forcompensation again (Article 12, paragraph 2 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
· If multiple inheritors are ranked equally, the claimant shall not cancel the claim without the unanimous agreement of other inheritors (Article 12, paragraph 1 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
- Suspension and Succession of the Claim
· Suppose the claimant of the criminal indemnity passed away while the claim procedure was in process, or if the claimant is no longer qualified as an inheritor, which leaves no other people qualified to seek the claim. In this case, the criminal indemnity claim procedure will be suspended (Article 19, paragraph 1 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
· Suppose the criminal indemnity claimant passed away or became disqualified as an inheritor during the claim procedure. In this case, the claimant’s inheritor or an inheritor ranked equally may succeed the claim rights within two months(Article 19, paragraph 2 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
Determination of the Claim for Criminal Indemnity- The court’s collegiate body shall judge the claim for indemnity (Article 14, paragraph 1 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
- The court shall determine whether to approve the claim for indemnity within six months after hearing the prosecutor’s and claimant’s opinion (Article 14, paragraphs 2 and 3 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
- The court shall inspect the reason for the claim, such as the confinement period or execution of sentence, by its official authority (Article 15 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
- Determination of Claim of Indemnity
· Determination of Claim Withdrawal: For the following cases, the court will decide to dismiss the claim for indemnity (Article 16 and Article 19, paragraph 4 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
√ If the claim procedure of criminal indemnity violates conditions under the law and cannot be revised
√ If the claimant refuses to comply with the court’s command to change claim procedures
√ If the claimant requested compensation after the period of claim
√ If the claimant does not apply for the succession of indemnity claim procedures within two months after the suspension of procedures
· Determination of Claim Dismissal: If there is no reason to claim the criminal indemnity, the claim will be dismissed (Article 17, paragraph 2 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
· Determination of Indemnity: If there are reasons to claim the criminal indemnity, the claimant will be compensated (Article 17, paragraph 1 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
- The claimant may file an immediate appeal within seven days after the determination of claim dismissal (Article 20, paragraph 2 of the Act on Criminal Compensation and Restoration of Impaired Reputation and Article 405 of the Criminal Procedure Act). For indemnity determination, the claimant may file an immediate appeal within one week (Article 20, paragraph 1 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
Payment of Criminal Indemnity Payment of Criminal Indemnity- The person intending to claim payment of criminal indemnity shall submit the ① Invoice for Indemnity Payment, and ② the Court’s Written Decision for Indemnity to the prosecutor responding to the court within two years after the written decision for indemnity had been delivered (Article 21, paragraphs 1 to 3 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
- If multiple persons are qualified to receive the indemnity, one person can claim the payment invoice as a representative (Article 21, paragraph 4 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
Payment of Criminal Indemnity- The prosecutors’ office provided with the invoice for indemnity payment shall pay the indemnity within three months after receiving the invoice (Article 21-2, paragraph 1 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
- If the prosecutors’ office fails to pay the indemnity by the due date, it shall apply the legal interest rate under the Civil Act to pay the delay charge for the delayed period starting from the day after the due date (Article 21-2, paragraph 2 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
※ Criminal Indemnity for the Suspect
◇ Requirements for the Suspect’s Criminal Indemnity
- Suppose a person confined as the suspect was non-indicted by the prosecutor or the judicial police officer decided not to transfer the case. If so, the person may claim the nation for criminal indemnities for the confinement (Main Text of Article 27, paragraph 1 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
- However, any person falling under the following cases shall not claim indemnity (Conditions of Article 27, paragraph 1 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
· If there was a reason for the non-indictment or non-transfer after the confinement
· If the non-indictment or non-transfer is not the final decision
· If the prosecutor does not file prosecution by considering the conditions of punishment determination (Article 247 of the Criminal Procedure Act)
- However, any person falling under the following cases shall not be paid for some or all indemnities (Conditions of Article 27, paragraph 2 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
· If the person concerned is recognized to have made a false confession to ruin the investigation or trial or was confined by fabricating crime evidence
· If the person was investigated for another crime during the confinement period and was concluded guilty
· If an exceptional circumstance occurs, incurring indemnity payment to go against morality or any other social order
◇ Suspect’s Claim for Criminal Indemnity
- Suppose a person intends to claim indemnity for the suspect. In this case, the person shall submit the ① Invoice of Indemnity Payment, and ② Evidential Documents of Disposition of Non-Indictment or Non-Transfer. These documents shall be sent to the district prosecutors’ office to which the prosecutor who has issued non-indictment(refers to the district prosecutors’ office to which the branch office belongs, if the prosecutor who executed non-indictment belongs to the branch office), or the Suspect Indemnity Deliberation Committee responding to the judicial police office in which the judicial police officer executed non-transfer belongs to (Article 28, paragraphs 1 to 3 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
◇ Suspect’s Claim for Criminal Indemnity
- The suspect shall claim payment of criminal indemnity within two years after the written decision of compensation has been sent. No claims shall be made after this period (Article 28, paragraph 5 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
Claiming the Post of the Written Judgment of Acquittal Post of the Written Judgment of Acquittal- The defendant with a judgment of acquittal may claim the district prosecutors’ office in which the prosecutor who indicated the relevant case works for (including the branch office of the district prosecutors’ office) to post the finalized written judgment of acquittal on the Ministry of Justice’s website within three years after its confirmation (Article 30 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
- Any person falling under the following cases may also be requested to post the written judgment of the confirmed case (Article 34 and Article 26, paragraph 1 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
· Suppose the absolution of a public action or prosecution dismissal was confirmed and determined under the Criminal Procedure Act, but the defendant had no reason to stand trial for such reasons. If the defendant had a justifiable and apparent reason to be acquitted, he/she shall claim for criminal indemnity.
· If the innocence was proved for the person who received an independent claim for medical treatment and custody under Article 7 of the Medical Treatment and Custody Act, or if there is no evidence that the person committed the crime, and claim dismissal was determined and confirmed eventually.
How to Claim Criminal Indemnity- The defendant shall submit the following documents to claim for the post of the written judgment of acquittal (Article 31, paragraph 1 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
· Claim for the post of the written judgment of acquittal
· Certified copy of the count records of acquittal judgment
· Certificate of the confirmation of acquittal judgment
※ Suppose the defendant’s inheritor intends to claim the post of the written judgment. In this case, the inheritor shall submit data indicating whether there are other inheritors on the same level as the inheritor. If multiple inheritors exist, the inheritor shall submit data stating that every inheritor has agreed for the post of the written judgment of acquittal (Article 31, paragraph 2 of the Certified Copy of the Act on Criminal Compensation and Restoration of Impaired Reputation).
- If a legal representative may claim or cancel the claim of the written judgment, he/she shall comply with the regulations on the claim of criminal indemnity (Article 31, paragraphs 3 and 4 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
Measures to take on the Claim- The responsible institution shall post the written judgment of acquittal on the Ministry of Justice’s website within a month after receiving the claim (Main Text of Article 32, paragraph 1 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
- After posting the written judgment of acquittal on the Ministry of Justice’s website, the responsible institution shall promptly notify the claimant in writing about the post (Article 33, paragraph 1 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
- For any of the following cases, some contents of the written judgment of acquittal may be deleted before being posted (Conditions of Article 32, paragraph 2 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
· If the claimant specified his/her intention to delete some contents of the written judgment of acquittal
· If publicizing the written judgment of acquittal may severely damage the honor, privacy, life, physical safety, or livelihood and security of persons involved in the case
- The written judgment of acquittal shall be posted for one year (Article 32, paragraph 4 of the Act on Criminal Compensation and Restoration of Impaired Reputation).
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