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defense counsel at any time, but if no counsel has been counsel can object to the introduction of certain evidence; the court
obtained by the time the case has been sent to trial, the must then render a decision on the objection. After all the evidence hak
court sua sponte must appoint counsel if the accused is: been examined by the court, the public prosecutor makes his summa-
(1) a minor; (2) 70 years or more; (3) deaf or mute; (4) tion in which he states his opinion of the facts proved and the applicabAe
law, and suggests an appropriate punishment. The defense counsel ca;n
suspected of being mentally unsound; or, (5) unable to then make a fmal argument concerning both the facts and the law; the
obtain counsel because of a lack of assets (or other defendant can also make a statement in his own behq. 118
d
reasons) and has requested counsel. 114 Additionally, if m. Appeals. If the accused is found gdy, any appeal
the offense is punishable by death, penal servitude, or im- must be filed in writing within seven daybuter the sen-
prisonment for more than three years, the court must ap- tence is adjudged. In Korea, any party to the action may
point counsel. 11s appeal, not only the prosecutor, the accused, and his legal
k. Introducing Evidence. In Korea there are certain counsel, but also a legal representative, spouse, linql
restrictions on the introduction of evidence at trial. For relation, brother, sister, or head of the family. Genera&
example, coerced confessions, confessions without cor- the Appellate Court only considers matters raised by the
roborating evidence, or hearsay testimony may not be in- appellant, but it is permitted to raise certain matters on its
troduced. However, the prosecutor's file (dossier), in own motion. 119 The Appellate Court may not impose a
whole or in part, may be admitted, if authenticated even heavier sentence than that imposed by the trial court. The
though it contains statements by the defendant or other decision of the Appellate Court may then be appealed to
persons. At the trial both the prosecutor and the accused the Supreme Court, which generally only decides ques-
may present evidence and the court on its own motion tions of law. 120
may call for additional information. The accused may A-32. Japan a. Historical Origins. The Japanese legal
refuse to "answer any or all questions," but "the court system is a mixture of the civil and common law systems.
must give him an opportunity to make a statement favora- The fust Japanese Constitution (1889) was greatly in-
ble to himself." 116 fluenced by German and Austrian law because the com-
I. Composition of the Court. In the trial process, there is mon law sytem was considered too "democratic" by the
no "provision in the constitution or in the laws for trial by Japanese society in the latter half of the 19th century. 121
jury." 117 Therefore, the trial is either before judge alone Initially, the Japanese drew heavily on the French legal
or a panel of judges. The proceedings in a Korean criminal system (e.g., the ofice of procurator or public prosecutor
trial may be summarized as follows: was established in 1872), but around 1880 the influence
The presiding judge fixes the date for the fmt public session, although of French procedures dwindled and the German processes
he is limited by the requirement . . . that the accused or his counsel assumed preeminence. By the beginning of the 20th cen-
receive the indictment at least five days before the trial begins. On the
fust day of the trial, the court summons the accused and notifies the tury, however, Anglo- American concepts were beginning
prosecutor and the defense counsel. The court is convened in the pres- to influence Japanese legal thinking. For example, the jury
ence of the judge or judges, the court clerk, the public prosecutor, and system was introduced in 1923. The common law did not
the accused. . . . Hearings are generally open to the public; the court, make its full presence felt until after World War 11, follow-
however, can exclude the public by decision if the proceedings are likely ingthe American occupation of the islands when the com-
to disturb public order or be harmful to the public's moral welfare. . . .If
the public is excluded, the court must state the reason for its decision. mon law influence became more pervasive. 122
Examples of such superimpositions are the guarantee of freedom from
At the beginning of the trial . . . the presiding judge must confi that discrimination in political, economic or social relations because of race,
the apparent accused is the true defendant by asking him his name, age, creed, sex, social status or family origin (Art. 14); the right of life, liber-
address, and occupation. The prosecutor then describes the nature of ty, and the pursuit of happiness (Art. 13); the right of all persons to be
the alleged offense, as set forth in the indictment. Before proceeding secure in their homes, papers, and effects . . . (Art. 35); and especially
further, the judge must give the accused an opportunity to make an the fact that the judiciary is to be independent in the exercise of their
opening statement in his own behalf; the defendant need not say any- conscience and shall be bound only by this constitution and the laws.
thing, however. The judiciary is the fmal arbiter of all legal matters (Arts. 76, 55 2 and
If the accused is willing to answer questions, the defense counsel and 3). 123
the prosecutor can examine him, in turn, regarding the alleged offense; b. Modern. Although the Japanese Penal Code and the
then the presiding judge can interrogate him. Thereafter, an associate Japanese Code of Criminal Procedure retain characteristic
judge can ask questions of the defendant. . . . Even if the defendant has features of the civil law, several signif~cant points of the
answered some questions, he can still refuse to answer others.
After the examination of the accused, the prosecutor, the defense
counsel, and the defendant can introduce documentary evidence or 118. Id. at 37-40.
other evidence and can request that certain persons be called as wit- 119. For example, it can grant amnesty or abolish the penalty.
nesses, both experts and lay. . . . me court may also investigate a par- 120. KLS, supra note 106, at 46, 47.
ticular matter on its own motion.] The prosecutor, the accused, or his 121. Kuribayashi, The Japanese Legal System, 36 Australian L. J.
437 (1963).
114. Id. at 26. 122. Note, The JudicialSystem of Japan, 6 Case Western Reserve J.
115. Id. Int'l L. 294, 295 (1974).
116. Id. at 23. 123. Id. at 397, n. 12. The citations are to the Japanese Constitu-
117. Id. at 15. tion of 1946.