The Unfinished "Criminal Procedure Revolution" of Post-Democratization South Korea
Cho, Kuk, Denver Journal of International Law and Policy
The nationwide June Struggle of 1987 led to the collapse of Korea's authoritarian regime and opened a road toward democratization. (1) Under the authoritarian regime, the "crime control" value dominated over the "due process" value in regards to criminal procedure. (2) The Constitution's Bill of Rights was merely nominal, and criminal law and procedure were no more than instruments for maintaining the regime and suppressing those dissident. It was not a coincidence that the June Struggle was sparked by the death of a dissident student tortured during police interrogation. (3)
The new 1987 Constitution brought a significant change in the theory and practice of the Korean criminal procedure. Explicitly stipulating the idea of due process in criminal procedure, (4) the Bill of Rights in the Constitution has become a living document. (5) The 1988 and 1995 amendments to the Korean Criminal Procedure Code (6) [hereinafter "CPC"] have also strengthened the procedural rights of criminal suspects and defendants to some degree. The newly established Korean Constitutional Court and the Korean Supreme Court have made important decisions for such rights.
However, a number of problems still remain which disturb the change in the Constitution and overshadow the constitutional procedural rights. Police practices of avoiding the warrant requirements for arrest and search-and-seizure have continued. Guarantees of procedural rights for criminal suspects in police interrogation still remain incomplete and fragile. Investigators enjoy their dominant role in the criminal procedure scheme, while citizens are often treated merely as an object of the investigation. The judiciary is reluctant to exclude illegally obtained confessions and physical evidence in trials.
This article examines the basic system of Korean criminal procedure after democratization, and analyzes its problem from the standpoint of the "constitutionalization of criminal procedure." First, it starts with a brief review of the implication of the shift brought by the 1987 Constitution. Second, it outlines the basic system of Korean criminal procedure, focusing on the advancement of the guarantee of procedural rights. Third, it explores the legal provisions of the CPC, the Police Duty Law, and police practices which block the further advancement of Korean criminal procedure. Finally, this article reviews the passive position of the Korean Supreme Court on the exclusionary rule.
II. OUTSET OF THE "CONSTITUTIONALIZATION OF CRIMINAL PROCEDURE" AFTER THE 1987 KOREAN CONSTITUTION
Under the authoritarian regime established after the May 16th military coup in 1961, democracy in South Korea was nominal, and the Korean Constitution was akin to the "Emperor's new clothes." Illegal police practices including torture, illegal arrest and detention were widespread in the criminal process. Beating, threatening, and torture by water or electricity were routinely applied to political dissidents.
Let us turn to some highly profiled cases in the 1980s (although there are many other similar cases under the regime). Supporters for President Kim Dae-Jung, a political dissident at that time, were severely tortured when arrested for their alleged conspiracy to overthrow the state in 1980. (7) In particular, those who violated the National Security Law were brutally tortured, and accused of being "pro-enemy leftists." (8) For instance, Presidential Secretary Lee Tae-Bok and Congressman Kim Geun-Tae, who were then leaders of the democratization movement, were brutally tortured when arrested for the violation of the National Security Law in 1980 and in 1983 respectively. (9) In 1987, Professor Kwon In-Sook, then a labor movement activist, was sexually abused by a policeman when arrested, and Park Jong-Chul, a dissident student, was suffocated to death in the bathtub during police torture. (10) Besides political dissidents, ordinary people also had to go through the cruel investigation process. …