In South Korea, a suspended indictment (기소유예, giso yuyae) is a prosecutorial discretion mechanism whereby the public prosecutor formally decides not to prosecute a suspect even though sufficient evidence exists to charge the person with a crime. It is essentially a conditional non-prosecution.
A. Nature and Legal Effect (South Korea)
- Prosecutorial discretion: The prosecutor concludes that although the elements of the crime are present and prosecution is legally possible, public interest or justice would not be served by actual prosecution.
- Conditions considered:
- The seriousness of the offense
- Remorse and repentance of the suspect
- Voluntary restitution or settlement with the victim
- Criminal record or absence thereof
- Risk of recidivism
- Social impact
- No conviction is entered, and no court trial ensues.
- Not a dismissal or acquittal, but a deferred and suspended decision to prosecute. The case is still technically within prosecutorial control.
- Can be revoked if the suspect reoffends or violates conditions (in cases with attached conditions).
B. No Exact Equivalent in the Philippines
In the Philippines, the Department of Justice (DOJ) and prosecutors do not have a formal legal concept of “suspended indictment.” If probable cause exists, the prosecutor must file the case. Dismissal or deferral may occur, but only:
- Through preliminary investigation dismissal, or
- Under the “provisional dismissal” rule under Rule 117, Sec. 8 of the Rules of Court, but this requires consent of the accused and the court. There is no legal mechanism for a prosecutor to shelve or suspend indictment after finding probable cause as a matter of pure discretion or policy.
C. U.S. Equivalent: Deferred Prosecution Agreements (DPAs)
In the United States, the closest analogues are:
- Deferred Prosecution Agreements (DPAs): The prosecutor agrees not to file charges immediately in exchange for the accused meeting certain conditions (e.g., rehab, restitution, no reoffending). If fulfilled, charges may be dropped.
- Pretrial Diversion Programs: Especially in state courts and for first-time, non-violent offenders. Participation in these programs leads to dismissal of charges upon successful completion.
Like South Korea’s suspended indictment:
- The decision is discretionary.
- No criminal record or conviction results.
- Designed to reduce burden on courts and offer second chances.
D. Key Differences
| Feature | South Korea (Suspended Indictment) | U.S. (DPA/Pretrial Diversion) | Philippines |
|---|---|---|---|
| Legal Basis | Prosecutor's discretion under Korean law | Prosecutor discretion + statutes or court approval | No similar provision |
| Court Involvement | None | Sometimes court must approve | Always court-controlled |
| Conditional? | Sometimes | Always | Dismissal is either absolute or court-supervised |
| Criminal Record? | No conviction, but record of investigation may exist | No conviction if completed | No equivalent mechanism |
E. Policy Rationale
South Korea’s suspended indictment system reflects:
- A rehabilitative and pragmatic prosecutorial philosophy.
- An effort to decriminalize low-level or repentant conduct without burdening courts.
- A flexible tool for restorative justice and individualized treatment.
F. Summary
- Suspended indictment in South Korea = “We could charge you, but we choose not to—for now.”
- U.S. equivalents exist under DPAs and pretrial diversion.
- No Philippine equivalent exists; Philippine prosecutors must file if probable cause exists, with limited procedural exceptions.
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Generared by ChatGPT AI app, June 23, 2025, upon request of Atty. Manuel Laserna Jr.
