PART  II TRIAL OF THE FIRST INSTANCE

CHAPTER  I PUBLIC PROSECUTION

Section  1 - INVESTIGATION

Article 228
If a public prosecutor, because of complaint, report, voluntary surrender, or other reason, knows there is a suspicion of an offense having been committed, he shall immediately begin an investigation.
In conducting the investigation referred to in the preceding section a public prosecutor may set up a period of time and order the public prosecuting affairs official, judicial police officer specified in Article 230, or judicial policeman specified in Article 231 to investigate the circumstances of the offense, to collect evidence and to submit report thereof; the case file and evidence may be delivered thereto at the same time if necessary.
In the course of an investigation, an accused shall not be first summoned or interrogated unless necessary.
An accused who appears by complying with a summons, voluntary surrender, or on his free will may be released on bail, or to the custody of another, or with a limitation on his residence, if the public prosecutor, after examining the accused, considers that one of the circumstances specified in the items of section I of Article 101 or the items of section I of Article 101-1 exists but application for detention is unnecessary, provided that if detention is considered necessary, the accused may be arrested without a warrant, and be informed of the fact thereof followed by an application for detention filed with the court.  The provisions of sections II, III and V of Article 93 shall apply mutatis mutandis to this section.

Article 229
Each of the following officials shall act as judicial police officer within his respective judicial district and has the duty and power of assisting a public prosecutor in investigating an offense:
(1) Director General of National Police Agency, Commissioner of Police Department, General Commander of Peace Preservation Police Corps;
(2) A military police superior;
(3) A person authorized by law to exercise the duty and power of a judicial police officer, as specified in the preceding two items, in special matters.
The judicial police officer specified in the preceding section shall send the result of the investigation to the public prosecutor; if the said officer has taken the custody of the suspect arrested with or without a warrant, he shall send the suspect to the competent public prosecutor unless otherwise provided by the law, provided that if ordered by the public prosecutor, the suspect shall be sent immediately.
An accused, or suspect shall not be sent without first being arrested with or without a warrant.

Article 230
Each of the following officials is considered to be a judicial police officer and shall obey the instructions of a public prosecutor in investigating an offense:
(1) A commissioned police officer;
(2) A military police officer or petty officer;
(3) A person authorized by law to exercise the duty and power of a judicial police officer in special matters.
The judicial police officer specified in the preceding section who suspects that an offense has been committed shall initiate an investigation immediately and report the results thereof to the competent public prosecutor and the judicial police officer referred to in the preceding article.
The scene of the crime may be closed to public and inspection taken immediately, if it is necessary for investigation specified in the preceding section.

Article 231
Each of the following officials is considered to be a judicial policeman and shall obey the orders of a public prosecutor or judicial police officer in investigating an offense:
(1) A policeman;
(2) A military policeman;
(3) A person authorized by law to exercise the duty and power of a judicial policeman in special matters.
A judicial policeman who suspects that an offense has been committed shall initiate an investigation immediately and report the results thereof to the competent public prosecutor and judicial police officer.
The scene of the crime may be closed to the public and inspection taken immediately, if it is necessary for investigation specified in the preceding section.

Article 231-1
If a public prosecutor considers that the case sent or reported by the judicial police officer or judicial policeman has not been investigated completely; the case file and evidence may be returned for more information or be sent to other judicial police officer or judicial policeman for investigation.  The judicial police officer or judicial policeman shall send or report the result after completing supplementary investigation.
A public prosecutor may set up a time period for supplementary investigation specified in the preceding section.

Article 232
The victim of a crime may file a complaint.

Article 233
A statutory agent or spouse of the victim may file an independent complaint.
If a victim is dead, a complaint may be filed by spouse, lineal blood relative, collateral blood relative within the third degree of kinship, relative by marriage within the second degree of relationship, family head, or family member, provided that the complaint may not be contrary to the clearly expressed opinion of the victim in a case chargeable only upon complaint.

Article 234
A complaint may not be filed for the offense against morals specified in Article 230 of the Criminal Code except by one of the following persons:
(1) A lineal blood ascendant of the parties;
(2) A spouse or his lineal blood ascendant.
A complaint may not be filed for the offense against marriage and family specified in Article 239 of the Criminal Code except by a spouse.
A complaint may not be filed for the offense against marriage and family specified in section II of Article 240 of the Criminal Code except by a spouse.
A complaint may also be filed for the offense against personal liberty specified in Article 298 of the Criminal Code by an abducted person's lineal blood relative, collateral blood relative within the third degree of kinship, relative by marriage within the second degree of relationship, family head, or family member.
A complaint may be filed for the offense of libel and against credit specified in Article 312 of the Criminal Code by a spouse, lineal blood relative, collateral blood relative within the third degree of kinship, relative by marriage within the second degree of relationship, family head, or family member of a deceased person.

Article 235
If a statutory agent of the victim or if the spouse, blood relative within the fourth degree of kinship, relative by marriage within the third degree of relationship, family head, or family member of such statutory agent is the accused, the victim's lineal blood relative, collateral blood relative within the third degree of kinship, relative by marriage within the second degree of relationship, family head, or family member may independently file a complaint.

Article 236
Where there is no person competent to file a complaint, or a person competent to file a complaint is incapacitated from exercising his right of complaint, in a case chargeable only upon complain, the competent public prosecutor may, at the request of an interested party or ex officio, designate a person for filing the complaint.
The provision of the proviso of section II of Article 233 shall apply mutatis mutandis to this Article.

Article 236-1
A complaint may be filed by an authorized agent, provided that the public prosecutor or judicial police officer may order the complainant to be present, if necessary.
A power of attorney shall be presented to public prosecutor or judicial police officer for the authorization of agent to file complaint specified in the preceding section; it is also subject mutatis mutandis to the provisions of Article 28 and 32.

Article 236-2
The provisions of the preceding article and Article 271-1 shall not apply to the case of designation of a person for filing the complaint.

Article 237
In a case chargeable only upon complaint, the complaint must be filed within six months from the day a person entitled to complain was aware of the identity of the offender.
If one of several persons who may file a complaint delays beyond the prescribed period, such delay shall not affect another.

Article 238
In a case chargeable only upon complaint, the complaint may be withdrawn at any time before the conclusion of the argument in the trial of the first instance.
A complainant who withdraws a complaint shall not file it again.

Article 239
In a case chargeable only upon complaint, the filing or withdrawal of a complaint against one of several co-offenders has the same effect as a filing or withdrawal of the complaint against all such co-offenders, provided that if the offense is one specified in Article 239 of the Criminal Code, the withdrawal of a complaint against a spouse shall not be considered to be a withdrawal of a complaint against the other adulterer.

Article 240
Any person who knows that there is suspicion that an offense has been committed may report it.

Article 241
A public official who, in the execution of his official duties, learns that there is suspicion that an offense has been committed must report it.

Article 242
A complaint or report shall be made in writing or verbally to a public prosecutor or judicial police officer; if it is made verbally, records shall be taken.  To facilitate verbal complaint or report, bells for effecting the same may be installed.
If a public prosecutor of judicial police officer in the course of an investigation discovers all or a part of the facts of an offense which may be charged only upon complaint but the complaint has not yet been field, he shall, when the victim or other person entitled to file the complaint appears to testify, interrogate such person whether to file the complaint and shall record the answer.
The provisions of sections II through IV of Article 41 and Article 43 shall apply mutatis mutandis to the records specified in the preceding two sections.

Article 243
In a case chargeable only upon request as specified in Articles 116 and 118 of the Criminal Code, the request made by a foreign government may be forwarded by the Minister of Foreign Affairs to the highest judicial administrative officer who shall inform the competent public prosecutor by an order.
The provisions of Articles 238 and 239 shall apply mutatis mutandis to a request by a foreign government.

Article 244
The provisions of Article 242 shall apply mutatis mutandis to voluntary surrender to a public prosecutor or judicial police officer.

Article 245
An investigation shall not be public.
The defense attorney of an accused or suspect may be present and state his opinion when a public prosecutor, public prosecuting affairs official, judicial police officer, judicial policeman examines the accused or suspect, provided that if facts exist sufficient to justify an apprehension that such presence may jeopardize national security or destroy, fabricate, alter evidence or form a conspiracy with a co-offender or witness, or may be detrimental to the reputation of others, or that the behavior of the defense attorney is so inappropriate that it would interfere with the order of the investigation, such presence may be limited or prohibited.
The public prosecutor, public prosecuting affairs official, judicial police officer, judicial policeman, defense attorney, agent of the complainant, or any other person performing his duty under law during the investigation shall not disclose whatsoever information acquired through the performance of the duty during the investigation, unless otherwise permitted by law, or it is necessary for the protection of public interest or legitimate interest.
The time, date, and place of the examination of an accused or suspect during the investigation shall be notified to the defense attorney unless urgent circumstances exist.

Article 246
An accused may be examined where he is found if he is unable to be present or if other necessity requires.

Article 247
A public prosecutor may request from a competent public office any report necessary to an investigation.

Article 248
If an accused is present when a witness or expert witness is examined, he may personally ask questions; if the questions are improper, the public prosecutor may prohibit them.
If it is foreseen that a witness or expert witness cannot be examined at trial, the accused shall be ordered to be present unless such witness or expert witness cannot testify freely in his presence.

Article 248-1
When a victim is examined during the stage of investigation, his statutory agent, spouse, lineal blood relative, collateral blood relative within the third degree of kinship, family head, family member may be present and state their opinion therein; the same rule shall apply to the examination conducted by a judicial police officer or judicial policeman.

Article 249
If an emergency arises in the course of investigation, the person present or nearby may be ordered to give appropriate assistance; if necessary, a public prosecutor may also request a nearby military officer to send troops to assist.

Article 250
If a public prosecutor knows that there is suspicion that an offense has been committed but the case is not within his jurisdiction, or if he finds that the case is not within his jurisdiction after having begun an investigation, he shall immediately notify or send the case to the competent public prosecutor, provided that if there is an emergency, he shall take necessary measures.

Article 251
If the evidence obtained by a public prosecutor in the course of investigation is sufficient to show that an accused is suspected of having committed an offense, a public prosecution shall be initiated.
A public prosecution shall be initiated notwithstanding that the location of the accused is unknown.

Article 252
If one of the following circumstances exists, a ruling not to prosecute shall be made:
(1) A final judgment has been rendered;
(2) The period of statute of limitation has already expired;
(3) There has already been an amnesty;
(4) A law enacted after the commission of an offense abolishes the punishment;
(5) The complaint or request in offenses chargeable only upon complaint or request has been withdrawn or the time within which a complaint may be filed has expired;
(6) The accused is dead;
(7) The court has no judicial power over the accused;
(8) The act is not punishable;
(9) The punishment is remitted under law;
(10)  The suspicion of an offense having been committed is insufficient.

Article 253
If a public prosecutor considers it appropriate not to prosecute a case specified in Article 376 after having taken into consideration the provisions of Article 57 of the Criminal Code, he may make a ruling not to prosecute.

Article 253-1
If an accused has committed an offense other than those punishable with death penalty, life imprisonment, or with a minimum punishment of imprisonment for not less than three years, the public prosecutor, after considering the matters specified in Article 57 of the Criminal Code and the maintenance and protection of public interest, deems that a deferred prosecution is appropriate, he may make a ruling to render a deferred prosecution by setting up a period not more than three years and not less than one year thereof, starting from the date the ruling of deferred prosecution is finalized.
The period of statue of limitation shall be discontinued during the period of deferred prosecution.
The provisions of section IV of Article 83 of the Criminal Code shall not apply to the reason for discontinuance specified in the preceding section.
The proviso of section I of Article 323 shall not apply during the period of deferred prosecution.

Article 253-2
A public prosecutor in of making a ruling on deferred prosecution, may require the defendant to comply with or perform the following items within a limited period of time:
(1) Apologize to the victim;
(2) Make a written statement of repentance;
(3) Pay to the victim an appropriate sum as compensations for property or non-property damages;
(4) Pay a certain sum to governmental account or a designated non-profit or local self-governing organization;
(5) Perform forty to two hundred and forty hour community services to a designated non-profit, local self-governing organization, or community;
(6) Complete drug addiction treatment, psychotherapy and counseling, or other appropriate treatments;
(7) Comply with the necessary order for the protection of the victim's safety;
(8) Comply with the necessary order for the prevention of recommitting the offense.
Before a public prosecutor can order the defendant to comply or perform the acts specified in the items three through six in the preceding section, the defendant's consent shall be obtained; items three and four may also constitute a ground for civil compulsory enforcement.
The matters specified in section I shall be noted in the written deferred prosecution.
The period of time specified in section I shall not exceed the period of time allowed for the deferred prosecution.

Article 253-3
A public prosecutor may, ex officio or based on the application of the complainant, set aside the ruling of deferred prosecution and continue the investigation or initiate a prosecution, if the defendant commits the following during the period set forth for deferred prosecution:
(1) Has intentionally committed an offense punishable with a minimum punishment of imprisonment during the period of deferred prosecution and a prosecution is initiated by a public prosecutor;
(2) Has committed other offense intentionally before deferred prosecution and was sentenced to a minimum of imprisonment punishment during the period of deferred prosecution;
(3) Has failed to comply with or perform the matters specified in the items of section I of Article 253-2.
In case a ruling of deferred prosecution is set aside by the public prosecutor, the accused may not request the refund of or compensation for the part that had already been performed.

Article 254
If an accused commits several offenses for one of which a final judgment of severer sentence has been received, the public prosecutor may give a ruling not to prosecute if he considers that prosecution for another offense will not substantially affect the execution of sentence.

Article 255
If a public prosecutor gives a ruling of not to prosecute, deferred prosecution, or to set aside a ruling of deferred prosecution in accordance with the provisions of Article 252, 253, 253-1, 253-3 and 254, or gives a ruling of not to prosecute for other legal reasons, he shall prepare a written ruling setting forth the reasons thereof, provided that if consent of the complainant or informer has obtained prior to making of the ruling, only important part thereof has to be noted in the same.
A true copy of the written ruling specified in the preceding section shall be served on the complainant, the informer, the accused, and the defense attorney; a written ruling of deferred prosecution shall be served on the victim, governmental agency, organization, or community authority related to acts to be complied with or performed as specified in the ruling.
The service specified in the preceding section shall be made not more than five days after the original copy of the ruling is received by the clerk.

Article 256
Within seven days after receipt of a written ruling not to prosecute or a written ruling of deferred prosecution, a complainant may make an application in writing for reconsideration of the ruling, setting forth his reasons for dissatisfaction, through the original public prosecutor to the chief public prosecutor for the immediate superior Court or public prosecutor general; provided that if consent of the complainant has been obtained prior to the ruling was made under Articles 253 and 253-1, he may not make application for reconsideration.
Where a reconsideration of a ruling not to prosecute or a written ruling of deferred prosecution may be applied for, the period within which an application for such a reconsideration may be made and the chief public prosecutor of the immediate superior court or the public prosecutor general to whom the application is to be submitted shall be noted in the true copy of the written ruling served upon the complainant.
When a public prosecutor makes a ruling not to prosecute on a case where the offense charged is punishable with death penalty, life imprisonment, or with a minimum punishment of imprisonment for not less than three years due to the fact that the suspicion of an offense having been committed is sufficient, or when a public prosecutor makes a ruling of deferred prosecution on a case specified in Article 253-1, he shall ex officio send the ruling to the chief public prosecutor of the immediate superior court or the prosecutor general for reconsideration and, if there is no person qualified for submitting application for reconsideration, notify the same to the informer.

Article 256-1
Within seven days after receipt of written ruling of setting aside a ruling of deferred prosecution an accused may make an application in writing for reconsideration of the ruling, setting forth his reasons for dissatisfaction, through the original public prosecutor to the chief public prosecutor for the immediate superior court or public prosecutor general.
The provision of section II of the preceding article shall apply mutatis mutandis to the service to the accused of the ruling of setting aside the ruling of deferred prosecution.

Article 257
If the original public prosecutor considers that the application for reconsideration is well-grounded, he shall set aside his ruling and continue the investigation or initiate a prosecution except for the circumstances specified in the preceding section.
If the original public prosecutor considers that the application for reconsideration is groundless, he shall immediately send the file and exhibits of the case to the chief public prosecutor of the higher court or the public prosecutor general.
An application which is not filed within the time prescribed in the preceding two articles shall be dismissed.
If the chief public prosecutor of the original court considers it necessary, he may, before the case is forwarded in accordance with the provisions of section II, personally investigate or order another public prosecutor to investigate or review to determine whether the original ruling should be set aside or upheld; if the original ruling is upheld, the case shall immediately be forwarded.

Article 258
If the chief public prosecutor of the higher court or the public prosecutor general considered that an application for reconsideration is groundless, he shall dismiss it; if he considers that the application is well-grounded, he shall set aside the original ruling under the circumstances specified in Article 256-1, or perform one of the following under the circumstance specified in Article 256:
If the investigation is incomplete, he may personally investigate or order another public prosecutor to investigate, or order the public prosecutor of the original court to continue it;
If the investigation has been completed, he shall order the public prosecutor of the original court to initiate a prosecution.

Article 258-1
If the complainant disagrees with the ruling of dismissal specified in the preceding article, he may, within ten days after receipt of written ruling of dismissal, retain an attorney to make an application in writing, to the concerned court in first instance, for setting the case for trial.
An attorney being retained as referred to in the preceding section may examine the file of the investigation and the evidence, and to make hand writing copy or photos, provided that it may be restricted or prohibited if the subject matter being examined involves other case that shall not be disclosed or shall be kept secret.
The provision of section I of Article 30 shall apply mutatis mutandis to the circumstances specified in the two preceding sections.

Article 258-2
The application for setting the case for trial may be withdrawn prior to the court ruling is made; the same can be done after the ruling setting the case for trial has been made but prior to the conclusion of argument at the trial of the first instance.
The clerk shall immediately notify the accused of the withdrawal of application for setting the case for trial.
The person who withdraws the application for setting case for trial may not re-apply the same.

Article 258-3
The ruling on the application for setting case for trial shall be determined by a panel of judges.
The court shall dismiss the application for setting case for trial if the application is considered to be illegal or groundless; the court shall make a ruling setting the case for trial if the application is considered to be well-grounded; a true copy of the ruling shall be served on the applicant, the prosecutor, and the accused.
The court may conduct necessary investigation before making a ruling specified in the preceding section.
A public prosecution is deemed to be initiated at that time a ruling for setting the case for trial is made.
An interlocutory appeal may be taken, from the ruling of setting case for trial, by the accused; the ruling of dismissal is not appealable.

Article 258-4
The provisions of Section three, Chapter I, Part II shall apply to the procedure for setting case for trial, unless otherwise provided by law.

Article 259
If an accused who is detained receives a ruling not to prosecute or a ruling of deferred prosecution, the detention is considered to be cancelled, the public prosecutor shall release the accused and notify the court immediately.
If a ruling not to prosecute or a ruling of deferred prosecution is given, seized property shall be returned immediately unless otherwise provided by law or it is within the period of reconsideration, it is in the process of applying for reconsideration or applying for setting case for trial and necessity exists, or it is the property which should be confiscated or which is used in the investigation of another offense or another accused.

Article 259-1
If a ruling not to prosecute or a ruling of deferred prosecution is given by a public prosecutor in accordance with the provisions of Article 253 or 253-1, he may make separate application to the court for declaration of confiscation of the property used for committing the offense, for preparation of committing the offense, or acquired from the commission of the offense when the property was owned by the accused.

Article 260
If a ruling not to prosecute has become final or if a ruling of deferred prosecution has not been set aside during the period set forth in the ruling, no prosecution of the same case shall be initiated except under one of the following conditions:
(1) New facts or evidence is discovered;
(2) Circumstances for retrial exist as specified in one of the Items 1, 2, 4, or 5 of section I of Article 420.

Article 261
If the question whether an act constitutes a crime or whether the punishment for an offense should be remitted depends upon a civil legal issue, the public prosecutor shall suspend the investigation before conclusion of the civil action.

Article 262
If the accused is unknown, the investigation shall not be concluded before it is ascertained whether the circumstances specified in Article 252 exist.

Article 263
The provisions of sections II and III of Article 255 shall apply mutatis mutandis to an indictment filed by a public prosecutor.