Withdrawal of Indictment

A system under the Criminal Procedure Act under which a prosecutor withdraws an indictment before the first-instance judgment is pronounced, thereby extinguishing the pending litigation.

Withdrawal of Indictment

Overview

Withdrawal of indictment refers to a disposition under the Criminal Procedure Act by which a prosecutor withdraws an indictment filed with a court under certain requirements. Article 255 of the Criminal Procedure Act provides that "an indictment may be withdrawn before the pronouncement of the first-instance judgment," granting the prosecutor the authority to withdraw an indictment until judgment is pronounced. Once an indictment is withdrawn, the pending litigation is extinguished retroactively, the case returns to the state before the indictment was filed, and the court can no longer render a substantive judgment.

Main Contents

Legal Basis and Nature

Withdrawal of an indictment is based on Article 255 of the Criminal Procedure Act. The Act adopts the principle of discretionary prosecution (proviso to Article 246), recognizing the prosecutor's discretion over whether to file an indictment; withdrawal of an indictment differs from suspension of indictment in that it is an ex post exercise of discretion regarding an indictment already filed. The judicial position is that withdrawal of an indictment is a unilateral litigation act by the prosecutor and does not require the defendant's consent. However, debate exists over whether the defendant's reputation or interests should be considered.

Requirements and Procedure

An indictment may be withdrawn only before the first-instance judgment is pronounced. In principle, it is not permitted at the appellate or final appeal stage. As to the manner, paragraph 2 of the same Article provides that "withdrawal of an indictment shall be made in a document stating the reasons; however, it may be made orally in the courtroom." Thus, a document stating the reasons is the rule, and oral withdrawal is exceptionally allowed in the courtroom. The reasons for withdrawal may include substantive circumstances such as discovery of false impeachment evidence, resolution of suspicion based on new evidence, or settlement with the victim, as well as needs of procedural economy.

Effects

The most important effect of withdrawal is the extinction of the pending litigation. If withdrawal is lawfully made, the pending litigation is extinguished retroactively, and the court cannot pronounce a substantive judgment on the defendant. In this case, the court takes procedural steps such as issuing a decision dismissing the prosecution or confirming termination of the litigation. Meanwhile, Article 329 of the Criminal Procedure Act provides that "when an indictment has been withdrawn, a judgment of dismissal shall be pronounced"; this is interpreted as a provision contemplating a special situation in which withdrawal becomes an issue after judgment is pronounced, and generally the litigation ends through withdrawal before judgment.

Possibility of Re-indictment and Abuse

Whether the same criminal facts may be re-indicted after withdrawal is a practical issue. Since withdrawal extinguishes only the pending litigation and does not establish a final judgment, the prevailing view and judicial trend are that re-indictment itself is legally possible as long as the statute of limitations has not expired. However, if re-indictment is allowed, the defendant repeatedly bears the burden of investigation and trial, and there is concern that withdrawal may be abused as a means for the prosecutor's convenience. Accordingly, legislative arguments to restrict re-indictment and claims that the defendant's consent should be made a requirement for withdrawal have been consistently raised. The relationship with the constitutional prohibition of double punishment (Article 13), the right to a speedy trial (Article 27), and the presumption of innocence is also discussed.

Protection of Defendant's Rights

Because withdrawal is a discretionary act of the prosecutor, the defendant can hardly participate directly in whether withdrawal occurs. However, if withdrawal is unlawful or unjust, state liability for damages or disciplinary liability may arise; unlike a non-prosecution disposition, withdrawal is not subject to a request for adjudication or appeal, and criticism exists that remedies are limited. A defendant who has an interest in receiving a not-guilty verdict loses the opportunity to be acquitted through withdrawal, so tension exists between the defendant's procedural interests and the prosecutor's power of disposition.

Recent Trends

In 2024–2025, as prosecutors' decisions to withdraw indictments in cases with major political and social repercussions drew consecutive attention, legislative discussions on regulating the requirements and procedures for withdrawal more strictly became active. Specifically, the National Assembly and academia are considering: ① measures to make the statement of reasons more detailed and introduce a court confirmation procedure for withdrawal; ② measures to require the defendant's consent or hearing of the defendant's opinion; and ③ measures to restrict re-indictment for a certain period after withdrawal or require new evidence for re-indictment. In addition, as part of prosecutorial reform discussions, arguments are raised that the exercise of the power to withdraw indictments should be disclosed and external control strengthened. Meanwhile, the Supreme Court and the Constitutional Court are accumulating standards for determining the legal nature of withdrawal, the possibility of re-indictment, and the protection of the defendant's procedural rights, and in practice the tendency is strengthening to clearly record the grounds for withdrawal in the trial record and notify the victim.