Restrictions on Dismissal of Charges and Re-indictment to Cure Defects in Prosecution RequirementsCase Reference: Supreme Court Decision 2024Do16827, rendered on August 29, 2024

Article 255 of the Criminal Procedure Act in Korea allows a prosecutor to withdraw a public prosecution with stated reasons through written documentation or orally in court until the first-instance trial verdict (principle of prosecutorial discretion). However, established judicial practice has evolved to recognize the validity of prosecution withdrawals even when no specific reasons are cited, leading courts to consistently issue a ruling of dismissal. This practice aligns with the literal wording of Article 255, and it has not faced substantial opposition. Yet, this judicial practice, although perhaps faithful to the text of Article 255, raises significant concerns about fairness, particularly in cases where a not-guilty verdict seems likely due to insufficient evidence, as it may nullify the defense’s efforts and undermine the trial's fairness. Additionally, although Article 329 imposes some restriction by permitting re-prosecution only if “new significant evidence” is discovered after the withdrawal, the lack of limits on follow-up investigations and re-prosecutions leaves defendants vulnerable and in an uncertain legal status until the statute of limitations expires. Regarding the limitations on reasons for prosecution withdrawal, academic perspectives vary: ⓐ Based on Article 255’s wording, an unrestricted view holds that prosecutors may withdraw a prosecution for any reason, including insufficient evidence (Unrestricted View). ⓑ Some advocate that since the principle of prosecutorial discretion logically derives from the convenience principle in prosecution, grounds for withdrawal should be assessed based on the criteria of deferred prosecution (Article 247 Standard). ⓒ Another view asserts that, considering Article 329’s restrictions on re-prosecution based on new evidence, reasons for withdrawal should be limited to substantive grounds, excluding cases like insufficient evidence (Article 329 Standard). However, the Unrestricted View and Article 329 Standard fail to adequately prevent cases of prosecutorial harassment, such as withdrawals due to insufficient evidence, making them unsound options. The Article 247 Standard may restrict prosecution withdrawals due to insufficient evidence, but it may also unduly limit withdrawals when the normal progress of proceedings cannot be expected. Consequently, a more recent perspective—ⓓ the Public Interest Standard—proposes that reasons for withdrawal should be limited to cases where the public benefit gained, including considerations of prosecutorial efficiency, protection of defendants' rights, alleviating the burden on criminal courts, ensuring justice through penalties, and securing trial fairness, is paramount. The case examined here involves a prosecutor withdrawing a prosecution to rectify a procedural flaw related to the principle of prosecution based on indictment documents, followed by re-prosecution. In this case, the court ruled that Article 329’s re-prosecution criteria applied regardless of the specific reason for the initial withdrawal, issuing a dismissal of the prosecution. On the surface, this decision addresses the issue by interpreting Article 329, but it implicitly involves the issue of limiting prosecution withdrawal reasons, distinguishing itself from prior rulings. Fundamentally, the court adheres to the Unrestricted View yet considers the potential for prosecutorial abuse, where the prosecutor’s withdrawal without citing reasons might indicate an intent to avoid an anticipated acquittal due to insufficient evidence. The court’s refusal to accept the argument that rectifying the procedural defect or discovering “new significant evidence” justifies re-prosecution after an initial withdrawal suggests a growing judicial openness to setting limits on withdrawal grounds. This case may indicate a potential shift in judicial precedent.