Referral to the Prosecution

A criminal procedure act in which an investigative agency transfers a case with recognized criminal charges to the prosecution and entrusts it with the decision on whether to indict.

Referral to the Prosecution

Overview

Referral to the prosecution (檢察送致, geomchal songchi) refers to an act in criminal procedure in which an investigative agency, such as the police, when it determines that criminal charges are recognized and conditions for prosecution are satisfied, transfers the investigation records and evidence of the case to the prosecution and entrusts it with the decision on whether to indict (file a public action). Under the Criminal Procedure Act, the "referral of a case" is an essential connecting link for receiving the prosecutor's final disposition at the stage of concluding an investigation; after referral, the authority to indict or not indict rests solely with the prosecutor. In other words, referral has a dual character: it signifies the conclusion of the investigation and at the same time is the starting point for the exercise of the power to prosecute.

Main Content

1. Concept and Legal Character

Referral is distinguished from "transfer" (移送) in that it is an act of transferring a case between investigative agencies. Transfer mainly means moving a case to a court or another competent institution, whereas referral means sending a case to seek a prosecutor's disposition after the conclusion of an investigation. A representative example is the police sending a case to the prosecution after completing an investigation; the documents prepared at this time are the "investigation result report" and the "opinion statement."

2. Types of Referral

Non-custodial referral: A method of sending only documents and evidence to the prosecution without detaining the suspect. The suspect appears before the prosecution according to a separate summons procedure.
Custodial referral: A method of handing over an arrested or detained suspect to the prosecution while in physical custody. The so-called "48-hour rule" applies, under which the suspect must be released if a detention warrant is not requested within 48 hours after arrest.
Referral related to suspension of indictment or deferral of prosecution: Even when the investigation cannot continue because the suspect's whereabouts are unknown, the case itself is referred to and managed by the prosecution.

3. Procedures After Referral

When the prosecution receives a referred case, it reviews the records, conducts supplementary investigations, and examines the suspect and witnesses, and then issues one of the following dispositions.

1. Indictment (filing of charges): custodial indictment, non-custodial indictment, request for a summary order, etc.

2. Non-indictment disposition: no suspicion, not a crime, no right to indict, suspension of indictment, etc.

3. Request for supplementary investigation / request for reinvestigation: demand that deficiencies in the police investigation be remedied.

4. Referral and Non-referral

After the amended Criminal Procedure Act (adjustment of investigative authority between the prosecution and police) took effect in January 2021, the police gained the authority to make a "non-referral decision" to conclude a case on its own. However, even if charges are not recognized, if a case-related person files an objection or the prosecutor requests reinvestigation, the case may be referred again. In addition, when the police make a non-referral decision, they must notify the complainant, accuser, etc., of the reasons.

5. Rights of the Parties

After referral, during the prosecution's investigation, the suspect may exercise the right to assistance of counsel, the right to refuse to make statements, the right to request review of the legality of arrest or detention, etc. Complainants and accusers may appeal against a non-indictment disposition or apply for a ruling; for a non-referral decision before referral, they may use the objection procedure.

Recent Trends

In 2024–2025, discussions surrounding the referral-to-prosecution system have largely developed along three lines.

First, there is conflict over the prosecutor's authority to conduct supplementary investigations and the scope of direct investigations. Political circles and the legal community differ in their interpretations of the scope within which prosecutors may request supplementary investigations of referred cases or launch direct investigations, and related legislative amendments are repeatedly proposed and discarded in the National Assembly.

Second, there is the issue of delays in referral and case backlogs. As investigations remain pending for long periods at the police stage and are referred late, cases have arisen that are nearing the statute of limitations, or victims have not been notified of the outcome for a long time, emerging as social issues. Accordingly, there are continuing calls for institutional improvements to promptly notify parties of the progress of investigations and whether a case has been referred.

Third, there is the standardization of digital evidence and referral procedures. As seized items expand into large-capacity digital data, managing evidence lists at the time of referral, securing the reliability of forensic results, and protecting personal information have emerged as new issues. The prosecution and police are working to enhance the electronic case transfer system (Korea Information System of Criminal Justice Services, KICS) to increase the transparency and traceability of referral records.

In addition, civic groups and academia have consistently argued that the reasons for referral and non-referral decisions should be made more specific and that control procedures over non-referral decisions should be strengthened. In the future, the referral system is expected to be reorganized in the direction of finding a balance among three values: the allocation of investigative authority, human rights protection, and the speed of case processing.