Second Instance
Overview
Second instance (2심, i-sim) refers to the second level of adjudication, held when a party dissatisfied with a judgment or ruling of a first-instance court requests that a higher court hear the case again. Under the Civil Procedure Act and the Criminal Procedure Act, the second instance is in principle initiated by an appeal (항소, hangso), and it has the character of a factual trial (사실심, sasilsim) that reexamines both the facts of the case and the application of law. Unlike the third instance, the final appeal to the Supreme Court, which is limited to legal review, the key point is that the second instance may conduct evidence examination again and accept new arguments and evidence.
Main Content
Structure of the Instance System
Korea's judicial system in principle adopts a three-instance system. Proceedings proceed in the order of the first instance (a single judge or panel of the district court) → the second instance (an appeals division of the district court or a high court) → the third instance (the Supreme Court), with each instance conducting an independent trial. However, for small-claims cases and certain administrative and patent cases, a two-instance or single-instance system applies, so the second instance may become the final instance.
Distinction Between Appeal, Final Appeal, and Interlocutory Appeal
- Appeal (항소): The procedure that initiates the second instance by challenging a first-instance judgment. The notice of appeal must be submitted to the first-instance court within two weeks in civil cases and within seven days in criminal cases from the date the judgment is served.
- Final appeal (상고): The procedure for seeking a legal review by the Supreme Court against a second-instance judgment. Only limited grounds are recognized, such as violation of the Constitution, illegality of an order or rule, or violation of precedent.
- Interlocutory appeal (항고): A challenge to a ruling or order rather than a judgment. It is divided into immediate interlocutory appeals and ordinary interlocutory appeals.
Scope of Review in the Appellate Instance
The appellate instance is subject to the principle prohibiting unfavorable alteration (불이익변경금지 원칙), under which it reviews the original judgment only within the scope of the request for review. In criminal cases, if the defendant appeals, a sentence heavier than that of the original instance cannot be imposed, and the same limitation is discussed when only the prosecutor appeals. In civil cases, however, the appellate instance has broad authority to revoke the original judgment and render a new judgment.
Types of Final Judgments in the Appellate Instance
1. Dismissal of appeal: Where the original judgment is found to be justified.
2. Revocation of the original judgment and direct judgment: The original judgment is revoked and the appellate instance renders a new judgment itself.
3. Revocation of the original judgment and remand: The case is returned to the first-instance court because further examination is needed or there is a procedural defect.
4. Rejection of appeal: An unlawful appeal, such as one filed after the appeal period or by a person without the right to appeal, is rejected.
Differences Between Criminal and Civil Cases
In criminal appeals, as the primary factual instance, the principles of trial-centered proceedings and direct examination are emphasized, and safeguards for defendants' rights apply, such as cases requiring mandatory defense counsel and the appointment of court-appointed counsel. In civil appeals, the procedure includes the submission of a statement of grounds for appeal and renewal of oral proceedings, and referral for settlement or mediation is also actively used. Meanwhile, administrative litigation and family litigation have separate provisions on appellate procedure.
Composition of the Second-Instance Court
Cases are heard by a high court or an appeals division of a district court, and in principle by a panel composed of one presiding judge and two associate judges. However, some cases are handled by a single judge.
Recent Trends
In 2024–2025, the concentrated hearing system for appellate instances and the issue of trial delays emerged as major issues. Courts are reorganizing practice to conduct oral proceedings intensively in the appellate instance and to make evidence examination more efficient, and case-management standards for 'shortening the duration of appellate trials' have been strengthened. In addition, discussions on amending the Court Organization Act have continually raised the expansion of high court installations and the adjustment of appellate jurisdiction. Discussions continue on whether the citizen participation trial should apply to appellate instances and on standards for prosecutors' exercise of the right to appeal, and another new change is that AI-based judgment analysis and search tools have begun to be used in the practice of drafting statements of grounds for appeal. Meanwhile, as the Supreme Court's rate of 'dismissal without further proceedings' rises, some point out that the factual review function of the second instance in practice often serves as the final instance.
Related Topics
- [[항소]]
- [[상고]]
- [[3심제]]
- [[대법원]]
- [[민사소송법]]
- [[형사소송법]]
- [[불이익변경금지 원칙]]
- [[파기환송]]