If a Suspension of Indictment Is Challenged in the Administrative Court, What Must the Prosecutor Do After Judgment? Five Questions on Bill No. 2221071 to Amend the Criminal Procedure Act

The Bill Read and Its Confirmed Status

This entry reads Bill No. 2221071, a partial amendment bill to the Criminal Procedure Act. The proposers are shown as 13 lawmakers including Rep. Park Jie-won, the date of proposal as September 3, 2026, and the session as the 439th session of the National Assembly (regular session). The committee with jurisdiction is the Legislation and Judiciary Committee, and the National Assembly progress table records referral on September 4, 2026 as the last stage. On the page as of the reference date, October 16, 2026, no placement on the committee agenda, committee resolution, or plenary stage was shown.

The parts read were the reasons for proposal and main contents on the page, and the reasons for proposal, amended provisions, addenda, and comparison table of new and old provisions in the original bill PDF. No review report or minutes were yet available on the page, and this entry did not read any.

Sources for this section: National Participatory Legislation Center, National Assembly Legislation Status: Partial Amendment Bill to the Criminal Procedure Act (No. 2221071) · Original Bill PDF: Partial Amendment Bill to the Criminal Procedure Act (No. 2221071)

What Current Law and Case Law Now Provide

Article 247 of the Criminal Procedure Act as of the reference date provides that a prosecutor may decide not to institute a public prosecution, taking into account the matters in Article 51 of the Criminal Act. A disposition not to institute a public prosecution, taken in light of the sentencing conditions even though the suspicion is established, that is, a suspension of indictment, rests on this provision. Article 258 (1) requires that, in a case in which a complaint or accusation has been filed, the complainant or accuser be notified in writing of the purport of the disposition within seven days from the date of the disposition, and Article 258 (2) requires that, when a disposition such as non-prosecution is made, the suspect be notified of its purport immediately. Article 258 (2) does not separately prescribe the manner of notice.

For complainants and accusers, the law provides procedures to contest a non-prosecution disposition. Article 57 (1) of the Prosecution Service Act allows a complainant or accuser who objects to a non-prosecution disposition to appeal to the head of the competent Regional Prosecution Service within 30 days from the date of receiving the notice under Article 258 (1) of the Criminal Procedure Act, and Article 260 of the Criminal Procedure Act allows a person who has filed a complaint as a person entitled to do so, among others, to apply to the competent High Court for a ruling after going through that appeal. Neither provision names the suspect as a person entitled to apply.

Supreme Court Judgment 2017Du47465 delivered on September 28, 2018 held that a disposition for which the statute on which it is based contemplates objection through a procedure other than administrative litigation cannot be the subject of appeal litigation, and, as to a prosecutor's decision not to prosecute, held that because objection could be made only through the appeal and re-appeal under the Prosecutors' Office Act in force at the time of the judgment and the application for a ruling under the Criminal Procedure Act, no appeal litigation could be brought under the Administrative Litigation Act. The same judgment also held that the notice of the result of the disposition under Article 258 (1) is not a separate, independent disposition. That judgment concerned an objection by a complainant and did not evaluate this bill.

The reasons for proposal explain that a suspect who wishes to object to a disposition of suspension of indictment currently cannot bring an administrative action and must file a constitutional complaint. The proviso to Article 68 (1) of the Constitutional Court Act as of the reference date provides that, where a relief procedure is provided by another Act, a constitutional complaint may be filed only after all such procedures have been exhausted, and Article 68 (3), newly inserted on March 12, 2026, permits constitutional complaints against final court judgments only in certain cases.

Sources for this section: Korea Law Information Center, Current Criminal Procedure Act (Act No. 22009, effective October 2, 2026) · Korea Law Information Center, Current Prosecution Service Act (Act No. 21991, effective October 2, 2026) · Supreme Court Judgment 2017Du47465 delivered on September 28, 2018 (original text of the judgment at the Korea Law Information Center) · Korea Law Information Center, Current Constitutional Court Act (Act No. 21452, effective March 12, 2026) · Original Bill PDF: Partial Amendment Bill to the Criminal Procedure Act (No. 2221071)

What the Bill Seeks to Change

The bill rewrites the article number and heading of Article 258 in Korean script and inserts a new paragraph (3). Draft Article 258 (3) provides that a suspect who objects to a non-prosecution disposition made by a prosecutor taking into account the matters in Article 51 of the Criminal Act, although the suspicion is established as a result of the investigation, may bring an administrative action as prescribed by the Administrative Litigation Act within 90 days from the date of receiving the notice under paragraph (2). Without using the term suspension of indictment, it identifies its subject by two elements: the suspicion being established, and account being taken of Article 51 of the Criminal Act.

Article 1 of the Addenda provides that the Act takes effect six months after its promulgation, and Article 2 of the Addenda provides that Article 258 (3) applies from cases in which a non-prosecution disposition is made after this Act takes effect. The reasons for proposal cite three points: that if the same or similar conduct recurs before the record of a suspension of indictment is deleted from the investigation record data, it may weigh against the suspect in the prosecutor's disposition; that a suspect who claims that there is no suspicion should not be diverted to a constitutional complaint; and that it has been pointed out that the Constitutional Court's caseload should be reduced. The explanation regarding investigation record data is reproduced only as the proposers' explanation; this entry did not separately check the relevant legislation.

Sources for this section: Original Bill PDF: Partial Amendment Bill to the Criminal Procedure Act (No. 2221071) · National Participatory Legislation Center, National Assembly Legislation Status: Partial Amendment Bill to the Criminal Procedure Act (No. 2221071)

Does the Administrative Court Examine Whether the Suspicion Exists, or the Discretion Exercised in Taking Matters into Account?

The subject of draft Article 258 (3) is a non-prosecution disposition made taking into account Article 51 of the Criminal Act although the suspicion is established. What the suspect seeks to contest is usually the very finding that the suspicion is established. The reasons for proposal, too, give the example of a wronged suspect against whom there is no suspicion. If so, the examination in the administrative action would enter into findings of fact and legal judgments on whether an offence was committed, yet the bill states only that the action proceeds as prescribed by the Administrative Litigation Act and does not specify what is to be examined.

The Administrative Litigation Act is a framework for contesting the illegality of a disposition, and the illegality of a suspension of indictment may divide into cases in which the suspicion was wrongly found and cases in which the factors taken into account were wrongly assessed. The bill does not state what a suspect may seek where the suspect accepts the suspicion but contends that the weighing was improper, nor, conversely, how access to the investigation record or the submission of evidence is guaranteed to a suspect who contests the suspicion. Since the administrative court is not a criminal court, the standards of admissibility of evidence and of proof may also differ.

Nor is the defendant determined. Article 13 (1) of the Administrative Litigation Act makes the administrative agency that made the disposition the defendant unless another Act provides otherwise. The bill does not separately specify whether that is the individual prosecutor who made the disposition or the head of the Prosecution Service to which the prosecutor belongs, nor which court has jurisdiction. Is the subject of examination in the administrative action the existence of the suspicion or the discretion exercised in taking matters into account, and where are the defendant, jurisdiction and access to the record to be specified?

Sources for this section: Original Bill PDF: Partial Amendment Bill to the Criminal Procedure Act (No. 2221071) · Korea Law Information Center, Current Administrative Litigation Act (Act No. 21615, effective May 12, 2026)

Once a Judgment of Revocation Becomes Final, What Must the Prosecutor Do?

Article 30 (1) of the Administrative Litigation Act provides that a final judgment revoking a disposition binds the administrative agency that is a party and the relevant administrative agencies. The duty to make a new disposition under Article 30 (2) concerns cases in which the revoked disposition refused a party's application. Since a suspension of indictment is not a disposition refusing an application by the suspect, the provisions alone do not make clear whether the prosecutor is obliged to make a new disposition after a judgment of revocation, and, if so, what disposition must be made.

A harder case arises where the reasons for the judgment do not deny the suspicion and point only to an error in the weighing. The bill does not specify whether, once a suspension of indictment is revoked, the prosecutor may institute a public prosecution when making a new disposition, and, if so, whether the suspect must bring the action at the risk of a heavier outcome. Conversely, nor does the bill state whether, where the court has found that the suspicion is not established, the prosecutor must make a no-suspicion disposition.

How far does the binding force of a judgment of revocation constrain the content of the prosecutor's new disposition, and will a provision be included that bars or permits the institution of a public prosecution in the new disposition?

Sources for this section: Korea Law Information Center, Current Administrative Litigation Act (Act No. 21615, effective May 12, 2026) · Original Bill PDF: Partial Amendment Bill to the Criminal Procedure Act (No. 2221071)

What Happens If the Complainant's Application for a Ruling and the Suspect's Administrative Action Diverge over the Same Disposition?

A suspension of indictment in a case in which a complaint has been filed may be contested from two directions. The complainant may, after an appeal under Article 10 of the Prosecutors' Office Act, apply to the High Court under Article 260 of the Criminal Procedure Act for a ruling seeking the institution of a public prosecution. If the bill takes effect, the suspect may seek revocation of the same disposition in the administrative court. The structure is one in which one side contends that the suspension of indictment is too lenient and the other contends that there is no suspicion.

The periods for the two procedures also differ. The complainant's appeal must be filed within 30 days from the date of receiving the notice under Article 258 (1), and the suspect's administrative action within 90 days from the date of receiving the notice under Article 258 (2). While the High Court is deciding on the institution of a public prosecution in a case on an application for a ruling, the administrative court may examine or revoke the same disposition, yet the bill does not specify which procedure takes precedence or what effect the conclusion of one has on the other.

If the High Court's ruling procedure and the administrative court's revocation action are pending together over the same suspension of indictment, which is to take precedence, and if they reach different conclusions, by what means is the conflict to be resolved?

Sources for this section: Korea Law Information Center, Current Prosecution Service Act (Act No. 21991, effective October 2, 2026) · Korea Law Information Center, Current Criminal Procedure Act (Act No. 22009, effective October 2, 2026) · Original Bill PDF: Partial Amendment Bill to the Criminal Procedure Act (No. 2221071)

From When Do the 90 Days Run, and Do the Other Periods in the Administrative Litigation Act Follow?

The bill sets the period at 90 days from the date of receiving the notice under paragraph (2). Current Article 258 (2) requires only that the suspect be notified of the purport immediately and does not require writing. Unlike the notice to a complainant under paragraph (1), which is in writing, notice to a suspect may be given orally, by telephone or by text message, so who proves the date of receipt of notice, and how, may be disputed at the very starting point of the calculation of the period. Nor does the bill specify whether the period does not run where no notice was given.

Article 20 of the Administrative Litigation Act requires a revocation action to be brought within 90 days from the date on which the plaintiff became aware of the disposition, etc., and within one year from the date on which the disposition, etc. was made, with an exception where there is a justifiable reason. Since the bill's 90 days run from the date of receiving notice, its starting point differs from that of Article 20 (1). It is unclear whether the phrase "as prescribed by the Administrative Litigation Act" brings in the one-year limit in Article 20 (2) or the provisions concerning administrative appeals, or whether the bill's special rule replaces them.

Will the manner of notice to the suspect be prescribed as written notice, and in what relationship should the bill's 90 days and the periods in Article 20 of the Administrative Litigation Act be read?

Sources for this section: Korea Law Information Center, Current Criminal Procedure Act (Act No. 22009, effective October 2, 2026) · Korea Law Information Center, Current Administrative Litigation Act (Act No. 21615, effective May 12, 2026) · Original Bill PDF: Partial Amendment Bill to the Criminal Procedure Act (No. 2221071)

If the Route of Administrative Litigation Opens, Will Constitutional Complaints Decrease, or Will the Process Grow Longer?

The reasons for proposal cite easing the Constitutional Court's caseload. Under the proviso to Article 68 (1) of the Constitutional Court Act, where a relief procedure is provided by another Act, a constitutional complaint may be filed only after all such procedures have been exhausted. If the bill takes effect, administrative litigation becomes such a relief procedure, and it reads as though a suspect would have to go through an administrative action first rather than file a constitutional complaint against a suspension of indictment directly. The bill states that the suspect "may" bring an action, but read together with the principle of subsidiarity, it effectively becomes a procedure that must be exhausted first.

However, Article 68 (3) of the same Act has, since March 12, 2026, permitted constitutional complaints against final court judgments in certain cases. Since a constitutional complaint may again be filed against the judgment once a judgment in the administrative action becomes final, even if the number of cases reaching the Constitutional Court falls, the number of stages a single case passes through may increase. The materials for the bill do not explain this relationship.

Since Article 2 of the Addenda applies the bill only to non-prosecution dispositions made after it takes effect, a suspect who received a suspension of indictment before it takes effect will contest it by constitutional complaint as at present. How will the order of administrative litigation, constitutional complaints, and constitutional complaints against court judgments be organised, and will transitional measures be provided for dispositions made before the bill takes effect?

Sources for this section: Korea Law Information Center, Current Constitutional Court Act (Act No. 21452, effective March 12, 2026) · Original Bill PDF: Partial Amendment Bill to the Criminal Procedure Act (No. 2221071)

Commencement and remaining issues

Article 1 of the Addenda of the bill proposes that it take effect six months after promulgation. This is a proposed condition, not a fixed date. As of the reference date, the bill is shown at the stage of referral to the Legislation and Judiciary Committee.

The bill covers only suspensions of indictment and does not deal with other types of non-prosecution disposition or with a judicial police officer's decision not to refer a case. It also remains to be seen whether, in cases where the question of whether the suspicion is established is mixed into the reasons for the disposition, such as dispositions of no right of public prosecution or not constituting a crime, the requirement "although the suspicion is established" cleanly separates the cases covered. This entry does not recommend extending the scope, and leaves as a matter to be checked whether the bill's requirements fit the way the reasons for dispositions are actually stated.

Sources for this section: Original Bill PDF: Partial Amendment Bill to the Criminal Procedure Act (No. 2221071) · National Participatory Legislation Center, National Assembly Legislation Status: Partial Amendment Bill to the Criminal Procedure Act (No. 2221071)

What This Entry Did Not Verify

Constitutional Court decisions on suspension of indictment, the legislation governing investigation record data, review reports and minutes, and other bills on the same subject were not read. For Supreme Court Judgment 2017Du47465, the summary of holdings and the summary of the judgment were read, and its holding is based on the Prosecutors' Office Act in force at the time of the judgment. The current provisions were checked against the original texts at the Korea Law Information Center, and the Chinese characters mixed into the original texts were not reproduced.

The scope of the questions is confined to the original text of the bill, the current provisions, and the text of the judgment. This entry neither supports nor opposes the bill, does not recommend legislation, and does not predict how the bill will be dealt with.

Sources for this section: National Participatory Legislation Center, National Assembly Legislation Status: Partial Amendment Bill to the Criminal Procedure Act (No. 2221071) · Original Bill PDF: Partial Amendment Bill to the Criminal Procedure Act (No. 2221071) · Korea Law Information Center, Current Criminal Procedure Act (Act No. 22009, effective October 2, 2026) · Supreme Court Judgment 2017Du47465 delivered on September 28, 2018 (original text of the judgment at the Korea Law Information Center)