Refusal to State a Motive for the Offense

Conduct in which a suspect or defendant refuses to state the motive for the offense, a legal issue constituting exercise of the right to refuse to make statements (right to remain silent)

Refusal to State a Motive for the Offense

Overview

Refusal to state a motive for the offense refers to the act, in criminal proceedings, by which a suspect or defendant does not state or refuses to answer questions about the reason they committed the crime—that is, the motive for the offense. It is an exercise of the right to refuse to make statements (right to remain silent) guaranteed by Article 12(2) of the Constitution and the Criminal Procedure Act, and as such is a legitimate exercise of a right that cannot itself be punished or give rise to disadvantage. However, investigative authorities and courts mobilize circumstantial evidence, psychological analysis, digital evidence, and the like to resolve a state of unknown motive, and the presence or absence of a statement of motive has practical significance in specifying the facts charged and at the sentencing stage.

Main Content

Legal Basis and Nature

Article 12(2) of the Constitution provides that no citizen shall be compelled to make a statement disadvantageous to himself or herself in criminal matters, and Articles 200-2(3), 244-3, and 283 of the Criminal Procedure Act specify the right of suspects and defendants to refuse to make statements and the procedure for informing them of that right. Because questions about the motive for the offense may also constitute statements disadvantageous to oneself, a suspect may refuse to answer, and investigative authorities must confirm the intention to refuse to make a statement, record it in the protocol, and leave a record of whether the notification was given. The right to refuse to make statements is equally guaranteed not only at the investigation stage but also at the trial stage.

Effect of Refusal to Make a Statement

In principle, refusal to make a statement cannot be used as material for finding facts to the person's disadvantage. The Supreme Court does not permit the exercise of the right to remain silent itself to be treated as an indirect fact supporting guilt or evaluated as a circumstance suggesting an attempt to conceal the offense. However, where only a confession exists without a statement of motive, corroborating evidence is required under the corroboration rule in Article 310 of the Criminal Procedure Act, and the absence of a statement of motive may be considered as a circumstance in assessing the credibility of the confession.

Types and Practice

In practice, it is divided into (1) comprehensive refusal, (2) partial refusal that avoids answering only certain questions, and (3) active false statements presenting a false motive. In cases where it is difficult to ascertain motive, such as crimes with abnormal motives or random-target crimes, statement analysis by profilers, mobile phone forensics, financial and communications records, and psychiatric evaluations are used as alternative means of reconstructing motive. In property crimes where a purpose offense or intent to unlawfully obtain is at issue, statements related to motive may also be connected to the interpretation of constituent elements.

Relationship with Sentencing

It is not permissible to evaluate refusal to make a statement itself unfavorably for sentencing, but separate sentencing factors such as remorse or efforts to recover damage may be evaluated. Case law and sentencing practice are cautious about equating the exercise of the right to refuse to make statements with a lack of remorse, and even where there is no explanation of motive, they require fact-finding based on objective evidence.

Recent Trends

In 2024-2025, as the importance of confirming motive has grown in responding to crimes with abnormal motives, practice has spread in which prosecutors and police deploy statement analysts and profilers early and conduct digital forensics and psychological autopsies in parallel. At the same time, legislative discussions continue on strengthening the procedure for informing the right to refuse to make statements and reorganizing the manner of preparing investigation protocols, and the method of explaining evidence in cases of unknown motive in citizen participation trials has also emerged as an issue. There is also a clear trend in which the reliability of psychiatric evaluations becomes a major subject of judgment in cases combining claims of diminished mental capacity with refusal to state motive.