Page 229 - Law of Peace, Volume ,

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trict court or the person must be released and cannot be case; he merely steps into the shoes of the regular public prosecutor,
arrested again for the same offense without a warrant. and for this reason, he is paid by the government for his services.
(2) Pretrial detention. If there is reasonable belief However, the lawyer is restricted in one respect: In directing the in-
that a person has committed an offense and that the per- vestigation by police officials, the appointed lawyer must limit the scope
of the inquiry to those matters which the presiding judge [of the trial
son has no "fmed dwelling place" or there is reason to (district) court] has approved in advance. If at any time the court feels
believe the person may destroy evidence, or it is likely the that the lawyer is not properly performing his duties, .. .the court can
person will try to escape, then he may be placed in pretrial withdraw the appointment and designate some other lawyer to take his
confinement for a period of two months. The period of place. 108
detention may be extended, if need be, for a maximum of g. Bail. Under the Korean system, provision is made
six months. A suspect is placed in pretrial detention by a for bail:
warrant of detention issued by a court at the request of the an accused who has been detained is [to be] released after he has been
prosecutor. When the reason for detention ceases to exist, required to deposit with the court a sum of money which will be for-
the person is to be released. If a person has been arrested feited if he does not present himself when required to do so. 109
under a warrant, a request may be made to an appropriate In cases where the defendant is not entitled to bail, the
court by the person, his defense counsel, legal representa- court may, in its discretion, order bail. When a person is
tive, brother, sister, or head of his family for a decision as released on bail, the court may attach such conditions as
to the legality of the arrest. 107 If appropriate, the court can it deems appropriate. 110
order the release of the suspect. h. Standard of ProoJ: The prosecutor files charges
d. Initiating Charges. There are two other ways in when he has
which a prosecution can be initiated: reasonable grounds to believe that a crime has been committed by a par-
(1) Trial of the accused by summary proceedings for ticular person. However, the prosecutor can choose not to prosecute
petit offenses, and because of the age of the suspect, his character, his intelligence, his
(2) Where an Appellate Court overrules the deci- background, his motive, the manner in which the offense was commit-
sion of a prosecutor not to prosecute and orders the case ted, the result of the suspect's acts, and the suspect's attitude after the
commission of the offense. I 11
to trial.
Such "nonprosecution" is called a "suspension of indict-
e. Petit Offenses. It would appear that for certain types
of offenses, the chief of police may recommend that a ment" and should be distinguished from an outright dis-
summary trial procedure be used. If, however, the ac- missal of the charges based, for example, on insufficient
cused informs the chief of police who originally requested evidence or a failure to follow procedural require-
the summary trial of his objection to the procedure, then ments. 112
the records and evidence must be forwarded to the i. Indictment. If the prosecutor determines that charges
prosecutor for a public trial. This procedure for petit should go forward, he files a written indictment with the
offenses must not be confused with the procedure for appropriate court or moves that the matter be disposed of
summary judgment. by "summary judgment." The latter procedure is
J: Appellate Court Order. If a complainant (or in- reserved for minor cases which may involve only a fine.
former) is dissatisfied because the prosecutor has decided An
not to prosecute a case, he may petition, within ten days of accused can request a formal trial within seven days from the receipt of
being notified of the decision not to prosecute, through notification of summary judgment. If the accused does not desire to re-
the chief prosecutor of the district to the appropriate Ap- quest formal trial, or if he withdraws such a request, or if the court dis-
pellate Court for review of the decision. The chief misses the request ... and this decision is not appealed, the summary
judgment becomes conclusive and has the same effect as a judgment by
prosecutor may reverse the local (district) prosecutor and formal trial. 113
send the case to trial or send the file on to the ofice of the
higher prosecutor (i.e., to the prosecutor who operates at When a case is recommended for trial, a copy of the in-
the Appellate Court level) within seven days of receiving dictment must be sent to the accused or his attorney at
least five days in advance of the first session of court.
the petition. At this level, the case may be sent to trial or
to an Appellate Court which then must decide, within 21 j. Right to Defense Counsel. The accused may retain a
days whether to send the case to trial. If the petition is not
dismissed and the case is set for trial, the matter is handled 108. KLS, supra note 106, at 25.
just as though the charges had been filed by the public 109. Id. at 31.
prosecutor. The main departure from an action brought 110. For example, a court may restrict the individual to his dwelling
place.
by the prosecutor is that an attorney (other than the
111. KLS, supra note 106, at 36.
prosecutor) will be appointed to handle the case. 112. Id. "If a person is suspected of having committed more than
This lawyer is said to act in an official capacity while prosecuting the one offense the prosecutor can try all of the alleged offenses together or
can try only the most serious fmt." Id.
113. Id. at 20. Compare this procedure with the concept of the
107. This would be akin to a habeas corpus action in the United penal order in the German system discussed supra at notes 101 through-
States. 104 and accompanying text.