Criminal Procedure Act Amendment's "Otherwise" Clause Sparks Debate: "Unlimited Expansion of Dismissal Discretion Possible"

"Existing 'Invalid Procedure' Clause Moved to the End and Made a General Provision"

"Could Obstruct the Pursuit of Substantive Truth and Lead to Private Retaliation"

Concerns are being raised in the legal community regarding the newly added requirements of "serious" and "significantly" in the expanded provisions for dismissal of prosecution under the amended Criminal Procedure Act, as well as the expression "otherwise" that has been added to the existing provisions. Critics warn that expanding the court's discretion to dismiss prosecution could impede the pursuit of substantive truth in criminal trials.

Capture of the amendment to Article 327 of the Criminal Procedure Act. National Assembly Information System

According to the legal community on August 8, the current amendment to the Criminal Procedure Act revises Article 327, which stipulates the grounds for the court's dismissal of prosecution. In the current law, Article 327(2) states that "if the procedure of prosecution is rendered invalid by violating statutory regulations," it constitutes a reason for dismissal. However, in the amendment, this clause has been moved to Item 8—the last item in the list of grounds for dismissal—and the phrase "otherwise" has been added to its beginning.

Legal experts point out that this allows prosecution to be dismissed for reasons other than those newly established in Item 2 ("if prosecution was raised based on a serious illegal investigation") and Item 3 ("if prosecution was initiated through a significant abuse of prosecutorial discretion"). In effect, Item 8 has become a general clause encompassing all types of procedural defects.

A lawyer who previously served as a prosecutor commented, "The amendment now includes prosecution based on serious illegal investigations and significant deviation of prosecutorial discretion, which renders the grounds for dismissal both vague and wide in scope." He added, "If the 'otherwise' clause operates alongside these, it becomes possible to interpret dismissal of prosecution for reasons similar in degree to those expressly stated, as well as for the stated reasons themselves."

He cited as an example the case of illegal arrest during an investigation. He explained, "If there was an illegal arrest, the proper remedy is to release the individual and pursue separate state compensation procedures; it was not originally considered as grounds to block prosecution based on other valid evidence." He went on, "However, if the wording of the amendment is interpreted as written, there is room for procedural defects not expressly enumerated to also become grounds for dismissal of prosecution."

Academics have also voiced criticism that this rearrangement of provisions and addition of language could violate constitutional principles and lead to arbitrary interpretation. Jinah Cha, a professor at Korea University School of Law, observed, "In the previous Criminal Procedure Act, the relevant clause was limited to a single identified reason, and even the Supreme Court had interpreted it very narrowly." She continued, "However, by moving it to the last item and appending 'otherwise,' the amendment allows for unlimited expansion of the court's discretion to dismiss prosecution."

Specifically, according to the legal community, courts have so far applied the clause regarding violations of statutory regulation in the procedure of prosecution only in exceptional cases, such as fragmented prosecutions by investigative agencies or illegal entrapment operations inducing crime in individuals without criminal intent. However, there is growing concern that with the implementation of the amendment, the number of grounds the court recognizes for dismissing prosecutions could increase significantly. Professor Cha said, "A reason that used to explain extremely rare cases has become a general clause covering all scenarios, essentially opening the door for arbitrary interpretation—like a catch-all provision that can be fitted to any case at a judge's discretion." She added, "Expanding the room for prosecution dismissal based on subjective judicial judgment undermines the constitutional principles of clarity and equality."

There are also concerns that criminal trials could lose sight of their fundamental purpose—to ascertain substantial truth—should they become overly caught up in procedural defects. Professor Sungwoo Ji of Sungkyunkwan University Law School stated, "It is a global standard to dismiss prosecution only when there is a strictly defined objective reason." He added, "In principle, criminal trials should focus 1% on procedure and 99% on substance, but if such a catch-all provision is included, trials could become consumed by procedural issues alone."

Warnings have also been issued that this change could undermine the protection of crime victims and destabilize the judicial system. Professor Ji stressed, "If trials end with a formal dismissal of prosecution without a substantive judgment, aggrieved victims will have no avenue for relief under the law." He continued, "When the pursuit of truth is blocked, victims may resort to self-help or private retribution, which would represent a serious threat to the nation's criminal justice system."

Meanwhile, the amendment to the Criminal Procedure Act has already passed the National Assembly and received approval from the Cabinet, leaving only the President's endorsement and official publication in the government gazette. With implementation scheduled for October 2, the process has moved to revising subordinate regulations and related statutes. Even if a constitutional challenge is raised in the future, unless the Constitutional Court orders a suspension of effect, the amendment is expected to take effect as planned.

This content was produced with the assistance of AI translation services.