Withdrawal of Indictment (공소취소) in South Korea: A Detailed Commentary
1. Concept of Withdrawal of Indictment
Withdrawal of indictment is a procedural act by which the prosecutor retracts, before the court, an indictment that has already been filed. It is distinct from the “withdrawal of charged facts,” which is a form of amendment of the indictment.
Withdrawal of indictment terminates the court’s pendency over a case. It may cover the whole of a single criminal fact, as defined in procedural law, or some of several criminal facts.
Withdrawal of charged facts is different. It retracts the request for adjudication of part of the facts that make up a single criminal fact, and the case itself remains pending before the court.
2. Procedure for Withdrawal of Indictment
A. Form
As a rule, withdrawal of indictment must be made in writing, through a written withdrawal of indictment stating the reasons. It may also be made orally in open court (Article 255(2) of the Criminal Procedure Act). The withdrawal is valid even if no reasons are stated.
B. Time Limit
Withdrawal of indictment is permitted only before the judgment of the first instance is pronounced (Article 255(1) of the Criminal Procedure Act). This limit keeps the court’s final judgment from depending on the prosecutor’s decision to withdraw.
Withdrawal of indictment is therefore not permitted at the following stages:
| Stage | Withdrawal Permitted? |
|---|---|
| Before pronouncement of the first-instance judgment | Yes |
| Appellate proceedings (second instance) | No |
| Proceedings after reversal and remand, or after transfer | No |
| Retrial proceedings | No |
| Indictment filed under a court’s decision ordering prosecution upon an application for a ruling (jaejeong) | No (Article 264-2 of the Criminal Procedure Act) |
[Case 1: Withdrawal Not Permitted During Retrial] Where the first-instance judgment has been pronounced and become final, and retrial proceedings are under way, withdrawal of indictment is not permitted under Article 255(1) of the Criminal Procedure Act (Supreme Court Decision 76Do3203, Dec. 28, 1976).
[Case 2: Withdrawal Not Permitted on Appeal] On appeal, the prosecutor sought to withdraw some of the charged facts, which stood in substantive concurrence with the others, by way of an amendment of the indictment. The Supreme Court held that this was in substance a withdrawal of indictment and was therefore impermissible at the appellate stage. The lower court erred in its trial procedure by allowing it. However, because the error did not substantially prejudice the defendant’s exercise of the right of defense, it was not an illegality that affected the judgment (Supreme Court Decision 2022Do772, Apr. 14, 2022).
Summary orders are treated as follows:
- Before a summary order is issued: a withdrawal of indictment is deemed to withdraw the request for a summary order as a matter of course.
- After a summary order is issued: withdrawal of indictment is no longer possible.
- Where a request for a formal trial has been filed: in the resulting trial proceedings, the indictment may be withdrawn up until the first-instance judgment is pronounced.
3. Effects of Withdrawal of Indictment
A. Decision Dismissing the Indictment
When the prosecutor withdraws the indictment, the court must dismiss the indictment by decision (Article 328(1)1 of the Criminal Procedure Act). A withdrawal takes effect over the entirety of a single case. Accordingly, if the indictment is withdrawn as to part of a single case, the withdrawal takes effect as to the whole.
In practice, where the court is pronouncing judgment on the defendant’s remaining charged facts, it may also dismiss the indictment for the withdrawn portion in the form of a judgment rather than a decision. See:
- Daejeon District Court Decision 2016No2019, Sept. 29, 2016
- Seoul Central District Court Decision 2024No3548, Feb. 7, 2025
B. Restriction on Re-Indictment
Once a decision dismissing the indictment on the ground of withdrawal has become final, a new indictment may be filed only if other material evidence concerning that criminal fact is discovered after the withdrawal (Article 329 of the Criminal Procedure Act). This restriction is not an effect of res judicata or the principle of double jeopardy. It reflects considerations of legal stability and the protection of human rights.
“Other material evidence” means evidence other than what the prosecutor held before the withdrawal. It must be evidence of such weight that, although the pre-withdrawal evidence alone might have led to an acquittal for insufficient evidence, adding the new evidence would be enough to establish conviction (Supreme Court Decision 77Do1308, Dec. 27, 1977; Supreme Court Decision 2020Do16827, Aug. 29, 2024). Evidence that could have been adequately collected or examined and submitted before the withdrawal does not qualify as newly discovered evidence (Supreme Court Decision 2020Do16827, Aug. 29, 2024).
The restriction on re-indictment extends to the entire scope within which the withdrawn criminal fact retains its identity. “Other material evidence” is therefore required in two situations:
- where the prosecutor re-indicts on the same criminal fact as before, and
- where the prosecutor re-indicts after changing the content of the criminal fact, such as the manner or means of the offense or the extent of the harm (Supreme Court Decision 2008Do9634, Aug. 20, 2009).
[Case 3: Indictment Dismissed for Failure to Meet Re-Indictment Requirements] The prosecutor withdrew the indictment amid a dispute over violation of the “indictment-only” principle (the rule against attaching prejudicial material to the indictment). The prosecutor then re-indicted on the same facts. The evidence submitted consisted largely of material that could have been investigated before the withdrawal, or that did not add new content capable of establishing conviction. The court held that the requirements for re-indictment were not met and dismissed the indictment by judgment (Seoul High Court Decision 2019No1408, Nov. 19, 2020; Supreme Court Decision 2020Do16827, Aug. 29, 2024).
4. Withdrawal of Indictment by Way of Amendment of the Indictment: A Key Practical Issue
A. General Rule: Distinguishing Amendment of the Indictment from Withdrawal of Indictment
Withdrawal of charged facts by way of an amendment of the indictment is available only for part of the charged facts, and only within the scope in which the identity of the charged facts is maintained.
Where the indictment sets out several charged facts that lack identity with one another and stand in substantive concurrence, removing some of them from the indictment requires the procedure for partial withdrawal of indictment, not an amendment of the indictment (Supreme Court Decision 88Do67, Mar. 22, 1988; Supreme Court Decision 91Do1438, Apr. 24, 1992).
B. When an Amendment Is Treated as a Withdrawal of Indictment in Substance
Suppose the prosecutor applies to amend the indictment so as to withdraw one of several charged facts in substantive concurrence in its entirety. If the intent to withdraw the indictment for that portion is clear, the application must be treated as a withdrawal of indictment and the indictment dismissed, even though it was not made in the form of an application to withdraw the indictment. See:
- Supreme Court Decision 88Do67, Mar. 22, 1988
- Supreme Court Decision 91Do1438, Apr. 24, 1992
- Supreme Court Decision 2022Do772, Apr. 14, 2022
- Supreme Court Decision 2023Do3098, June 1, 2023
[Case 4: Oral Withdrawal Recognized as Withdrawal of Indictment] At a hearing in the lower court, the prosecutor stated orally that the charge of embezzlement of lost property was withdrawn. That charge stood in substantive concurrence with the remaining charges, and the prosecutor was withdrawing it in its entirety. The court held that this clearly amounted to a partial withdrawal of indictment and that a decision dismissing the indictment should have been issued (Uijeongbu District Court Decision 2024No1253, Aug. 12, 2024).
[Case 5: Intent to Withdraw Stated in the Application to Amend] In an application for permission to amend the indictment, the prosecutor wrote that “Count 3, assault, is deleted with the intent of withdrawing the indictment.” The prosecutor also wrote that “the indictment for assault is withdrawn because the victim has expressed a wish that the offender not be punished.” The court treated this as a withdrawal of indictment and dismissed the indictment by judgment (Daejeon District Court Decision 2024GoDan1176, May 2, 2025).
[Case 6: Reversal on Appeal for Failure to Issue a Dismissal Decision] In the lower court, the prosecutor applied to amend the indictment by deleting some of the charged facts, and the court granted the application. The court then pronounced judgment without issuing a decision dismissing the indictment as to the deleted portion. The appellate court reversed ex officio and pronounced a judgment dismissing the indictment. See:
- Daejeon District Court Decision 2016No2019, Sept. 29, 2016
- Busan District Court Decision 2016No372, Apr. 28, 2016
- Changwon District Court Decision 2024No1979, Nov. 19, 2024
C. Re-Adding Withdrawn Charged Facts by Amendment Is Not Permitted
A portion for which the indictment has already been withdrawn no longer shares identity with the charged facts.
In one case, the lower court permitted an amendment that re-added a portion withdrawn at the first instance and convicted on it. The Supreme Court held that this was a misapprehension of the law (Supreme Court Decision 2023Do3098, June 1, 2023).
D. Applications to Amend with the Intent to Withdraw the Indictment at the Appellate Stage
Withdrawal of indictment is not permitted on appeal (Article 255(1) of the Criminal Procedure Act). An application to withdraw some of the charged facts is therefore impermissible on appeal if it amounts to a partial withdrawal of indictment. The appellate court should deny the application, continue with its proceedings, and decide the case as charged (Supreme Court Decision 2022Do772, Apr. 14, 2022; Gwangju High Court Decision 2025No26, July 17, 2025).
5. Controversies Surrounding Withdrawal of Indictment
A. Concern over Arbitrary Exercise of Prosecutorial Power
Critics argue that recognizing withdrawal of indictment gives the prosecutor a dispositive power like a plaintiff’s withdrawal of suit in civil litigation. On this view, such a power is at odds with the nature of criminal procedure, which seeks the substantive truth.
Through withdrawal, the prosecutor can:
- deprive the court of the opportunity to review whether the prosecutor’s own decision to indict was sound;
- foreclose the defendant’s path to proving innocence through a judgment of acquittal; and
- block the defendant’s chance of being freed from the risk of re-indictment through the res judicata effect of a judgment on the merits.
B. Disputes over Interpreting the Requirements for Re-Indictment
There has been debate over the scope of the restriction on re-indictment after withdrawal (Article 329 of the Criminal Procedure Act). One view limits it to cases where the indictment was withdrawn for insufficient evidence. The other applies it regardless of the reason for the withdrawal.
The Supreme Court and the lower courts take the stricter reading. Once a decision dismissing the indictment on the ground of withdrawal becomes final, the re-indictment requirements apply whatever the reason for the withdrawal. See:
- Seoul Central District Court Decision 2018GoHap675, May 24, 2019
- Seoul High Court Decision 2019No1408, Nov. 19, 2020
- Supreme Court Decision 2020Do16827, Aug. 29, 2024
The reasoning is practical. Cases where the reason for withdrawal is unknown, or where several reasons coincide, would otherwise create problems that could seriously undermine legal stability after the withdrawal.
C. The Blurred Line Between Amendment of the Indictment and Withdrawal of Indictment
In practice, prosecutors often apply to amend the indictment in order to withdraw some of several offenses in substantive concurrence. Courts frequently grant these applications without clearly confirming whether they are intended as withdrawals of indictment.
In such cases, the court should take three steps:
- clearly confirm whether a withdrawal of indictment is intended;
- if so, determine whether the requirements for withdrawal are met; and
- if they are, issue a decision dismissing the indictment.
Overlooking this causes procedural confusion and can become grounds for reversal ex officio on appeal (Seoul Central District Court Decision 2024No3548, Feb. 7, 2025).
D. Withdrawal of Indictment as a Device for Improper Re-Indictment
Problems have arisen where prosecutors withdraw an indictment to escape a procedural defect, such as a violation of the indictment-only principle, and then re-indict on the same facts. Courts have held that the restriction on re-indictment in Article 329 of the Criminal Procedure Act applies here as well. They have dismissed such indictments by judgment, thereby protecting the defendant’s legal stability (Seoul Central District Court Decision 2018GoHap675, May 24, 2019; Seoul High Court Decision 2019No1408, Nov. 19, 2020).
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