Case on the Three-Day Period Allowed for an Immediate Complaint under the Criminal Procedure Act

[2015Hun-Ba77 and 2015Hun-Ma832 (consolidated), December 27, 2018] * First Draft

In this case, the Court held that Article 405 of the Criminal Procedure Act, which limits the period allowed for an immediate complaint to three days, infringes on the right to trial and thus does not conform to the Constitution.

Background of the Case

The complainant in case 2015Hun-Ba77 was prosecuted for defamation for violating the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. and for other offences. While the aforementioned case was pending at the trial court, the complainant filed a motion to challenge the presiding judge, and, on Friday, was served with a written copy of the ruling which refused to grant such motion. On the following Tuesday, the complainant filed an immediate complaint, which was subsequently rejected on the ground that the three-day time limit for filing an immediate complaint had expired. The complainant thereafter re-appealed with the Supreme Court. While the aforesaid case was pending, the complainant filed a motion to request a constitutional review of Article 405 of the Criminal Procedure Act. When such motion was denied, the complainant filed this constitutional complaint.

The complainant in case 2015Hun-Ma832 is the criminal complainant in a case where a public prosecution was not instituted by the prosecutor. After the prosecutor’s disposition, the complainant filed an application for adjudication, and, on Friday, was served with a written copy of the ruling which refused to grant such an application. The complainant thereafter sought to file an immediate complaint with the Supreme Court. However, public institutions providing legal counseling were closed on the weekend, and, on Monday, the complainant was unable to seek legal advice due to personal reasons. The complainant brought this constitutional complaint to the Court, claiming that it was impossible to observe the three-day time limit for the above reasons.

Subject Matter of Review

The subject matter of review in this case is whether Article 405 of the Criminal Procedure Act (enacted by Act No. 341 on September 23, 1954) (“the Instant Provision”) violates the Constitution. The Instant Provision reads as follows:

Provision at Issue

Criminal Procedure Act (enacted by Act No. 341 on September 23, 1954)

Article 405 (Period Allowed for Immediate Complaint)

The period allowed for an immediate complaint shall be three days.

Summary of the Decision

Given that an immediate complaint is a procedure entailing a brief and speedy judgment, the Court acknowledges the necessity for a short time limit for such complaints; however, criminal proceedings, which are the subject of an immediate complaint, concern various matters that significantly affect the legal status of parties, such as a ruling on the dismissal of an application for formal trial and a ruling over an application for the recovery of the right of appeal. Therefore, a time limit that effectively guarantees the right to trial is required in order to protect the right of the person entitled to lodge a complaint.

The Instant Provision fails to reflect the following facts pertaining to present-day situations: as parties in criminal proceedings are not notified in advance of the date of

the ruling, they need sufficient time to prepare an immediate complaint; as criminal cases nowadays have become complicated, the parties concerned require a long time to decide whether to lodge an immediate complaint; and when the parties in criminal proceedings are served with a written copy of the ruling on Friday afternoon, it is not easy for them to seek legal assistance from public institutions and lawyers on the weekend due to the widespread 40-hour work week introduced by the amendment of the Labor Standards Act, and considering the principle of arrival, they have in effect only Monday in which to submit an application for an immediate complaint by post. Accordingly, this leads to the unjust result of precluding the exercise of the right to file an immediate complaint of the parties in criminal proceedings when there is a moment of delay.

Even when not in detention, there may be circumstances where the parties in criminal proceedings are not capable of submitting an application for an immediate complaint to the court. Further, special rules for persons in prison or detention house under Article 344 of the Criminal Procedure Act apply mutatis mutandis only to specific provisions that are subject to such application, and Articles of the Criminal Procedure Act concerning the extension of a legal period and the demand for the recovery of the right of appeal alone do not adequately supplement the extremely short three-day time limit for filing an immediate complaint.

Besides, the three-day time limit is considered as extremely short compared with the one-week time limit for filing an immediate complaint under the laws concerning civil procedure, civil execution, administrative litigation, and criminal compensation procedure, or compared with the time limits for filing an immediate complaint in the United States, Germany, and France. The Court finds that a time limit that is less than half the period set out in the abovementioned laws does not properly reflect the unique features of criminal proceedings.

Therefore, the Instant Provision, which prescribes an extremely short time limit for filing an immediate complaint, reduces the immediate complaint system to an illusory and theoretical right. The Instant Provision thereby goes beyond the limits of legislative discretion, thus infringing on the right to trial.

The Court holds that the earlier decisions of constitutionality with respect to the Instant Provision (2010Hun-Ma499, May 26, 2011, and 2011Hun-Ma789, October 25, 2012) should be overruled in so far as they conflict with the Court’s decision in this case.

However, if the Instant Provision is declared unconstitutional and the time limit for filing an immediate complaint disappears accordingly, this is likely to create a legal disorder; moreover, determination of an appropriate time limit should be made by the legislature through extensive discussion. Thus, the Court rules that the Instant Provision does not conform to the Constitution, but orders that the Instant Provision continue to be applied until the legislature amends it by December 31, 2019.

Dissenting Opinion of Two Justices

We find it difficult to see that the circumstances recognized by the majority opinion as providing grounds for the overruling of the earlier decisions, occurred after the rendering of such decisions. Nor do we see that such circumstances amount to sufficient reasons for such overruling thereof. Therefore, the earlier decisions, which ruled that the Instant Provision did not infringe on the right to trial, should be upheld.

* This translation is provisional and subject to revision.