In short
A criminal appeal in Korea runs on two short periods, and both of them begin whether or not anyone is ready. The appeal must be filed within seven days of the pronouncement of judgment (Criminal Procedure Act, Article 358). The statement of grounds follows within twenty days of the notice that the case record has reached the appellate court (Article 361-3(1)).
Article 361-5 lists fifteen numbered grounds, four of which have been deleted. Three carry almost all of the argument in practice: misapprehension of law, mistake of fact, and an unjust sentence. They are frequently raised together.
An appeal is not a discount. Sitting en banc, the Supreme Court held that where the sentencing conditions have not changed and the first-instance sentence falls within a reasonable exercise of discretion, that sentence should be respected (2015Do3260, 23 July 2015).
For a foreign national the judgment fixes more than a penalty. Article 46(1)13 of the Immigration Act is written as a discretionary power over a person who has been sentenced to imprisonment without labour or a heavier punishment and released — and the type and length of that sentence is the very thing the appellate court can still change.
A criminal appeal in Korea is often described to foreign defendants as the stage where the case is looked at again. That is only half true. The appellate court does review the case, but it does so inside a frame that is fixed within the first four weeks after sentencing — and the periods that fix it are among the shortest in Korean procedure.
What follows sets out the statutory structure: the deadlines, the court that hears the appeal, the grounds the law recognises, the standard the Supreme Court has laid down for changing a sentence, and what a Korean criminal sentence means for a person whose right to remain in Korea depends on an administrative decision. It does not set out how any particular case should be argued.
Two clocks start on the day sentence is pronounced
The first period is seven days. Under Article 358 of the Criminal Procedure Act, the period for filing an appeal is seven days, and Article 359 requires the appeal petition to be filed with the court that rendered the judgment — not with the appellate court. The period runs from the pronouncement of judgment, which is a point in time that arrives in the courtroom rather than by post.
Precision about that courtroom matters. What is read out is the disposition. The written judgment is not handed to the defendant at the pronouncement; a certified copy is obtained afterwards on separate application. The seven days do not wait for it.
The second period is twenty days, and it does not begin at sentencing. Once the appellate court receives the case record it must give notice without delay (Article 361-2(1)), and the appellant then has twenty days from receiving that notice to submit the statement of grounds for appeal (Article 361-3(1)). The opposing party may file an answer within ten days (Article 361-3(3)). Where the defendant is in custody, Article 361-2(3) provides for transfer to the location of the appellate court within fourteen days of the notice.
Article 361-4(1) supplies the consequence: where the statement of grounds is not submitted within the period, the appeal is dismissed by ruling — unless the appeal petition itself states grounds, or there are matters subject to examination ex officio. An immediate appeal lies against that ruling (Article 361-4(2)). This period is the period for submitting the statement of grounds; sentencing material and other evidence may still be submitted while the appellate hearing is under way.
| Stage | Period | Provision |
|---|---|---|
| Filing the appeal | 7 days from pronouncement of judgment | Art. 358 |
| Where it is filed | the court that rendered the judgment | Art. 359 |
| Notice that the record has been received | without delay, on receipt | Art. 361-2(1) |
| Statement of grounds for appeal | 20 days from that notice | Art. 361-3(1) |
| Opposing party’s answer | 10 days | Art. 361-3(3) |
| Grounds not submitted in time | appeal dismissed by ruling, subject to the exceptions | Art. 361-4(1) |
| Defendant in custody: transfer | 14 days from the notice | Art. 361-2(3) |
| Final appeal to the Supreme Court | 7 days to file; 20 days for the grounds | Arts. 374, 379(1) |
A defendant who is detained is not left without a route while the days run. Article 344(1) treats a submission made to the warden of the correctional institution or detention centre within the period as having been made in time, and Articles 361-3(1) and 379(1) apply that rule at the appellate and final appellate stages.
Where the appeal goes, and the one step that cannot be undone
Article 357 divides the appellate route by the composition of the first-instance court. A judgment given by a single judge is appealed to the panel division of the district court’s principal branch; a judgment given by a panel is appealed to the High Court. The choice is not the defendant’s; it follows from how the case was tried.
Two further provisions deserve attention because they cut in opposite directions. Article 349 permits an appeal to be waived or withdrawn, with the qualification that the defendant’s side cannot waive an appeal against a judgment imposing the death penalty or life imprisonment. A waiver or withdrawal outside that qualification ends the matter.
Article 345 provides the only ordinary way back after a period has expired: restoration of the right of appeal, available where the appellant or the appellant’s agent was unable to observe the period for a cause for which they cannot be held responsible. The wording is narrow by design. It addresses causes outside the party’s responsibility, not a decision taken and later regretted, and each application turns on facts that have to be established rather than asserted.
Fifteen grounds on paper, three that carry the argument
Article 361-5 enumerates grounds of appeal in fifteen numbered subparagraphs, of which subparagraphs 5, 6, 10 and 12 have been deleted. In practice three of them account for nearly all of the contest, and they sit at different levels of the case.
| Ground | What it disputes | Provision |
|---|---|---|
| Misapprehension of law | Accepts the facts as found and disputes the interpretation or application of the law — the elements of the offence, the number of offences, grounds excluding wrongfulness, the limitation period | Art. 361-5(1) — violation of the Constitution, an Act, an order or a rule that affected the judgment |
| Mistake of fact | The first-instance court’s finding of fact itself | Art. 361-5(14) |
| Unjust sentence | Accepts both the facts and the law and disputes only the weight of the penalty | Art. 361-5(15) |
“Misapprehension of law” is a practitioners’ term rather than a heading in the statute. It is not listed as a separate subparagraph; it is subsumed within subparagraph 1, which covers a violation of the Constitution, an Act, an order or a rule that affected the judgment. In practice the three grounds are frequently argued together, because a single disputed conclusion can rest on a finding of fact, on the legal characterisation of that finding, and on the sentence that follows from both.
Which of the three a case actually turns on is not apparent from the disposition read out in court. It emerges from the reasoning in the written judgment, and it has to be settled inside the twenty-day period, because Article 364(1) provides that the appellate court adjudicates on the grounds included in the statement — subject to its own power under Article 364(2) to examine matters ex officio.
An appeal is not a discount: Supreme Court 2015Do3260
The most common expectation a foreign defendant brings to the appellate stage is that a second court will simply take a softer view. Korean law has addressed that expectation directly, and the answer is more structured than either “yes” or “no”.
Supreme Court of Korea, en banc judgment of 23 July 2015, Case No. 2015Do3260 (violation of the Game Industry Promotion Act; opening of a gambling place). Final appeal dismissed.
Sentencing is a discretionary judgment made on the factors in Article 51 of the Criminal Act, and under the principles of trial-centred proceedings and directness the first-instance court has its own domain in making it. Where the sentencing conditions have not changed and the first-instance sentence falls within a reasonable range of that discretion, it is appropriate for the appellate court to respect it. Where, however, the first-instance sentence is assessed as having exceeded the reasonable limits of discretion, or where material newly presented on appeal makes it unjust to maintain that sentence, the appellate court must quash it.
On the character of the appellate court, the majority held that an appeal is a continued hearing to which a review character is added, and that the appellate court holds its own sentencing discretion; reaching a different conclusion from the first instance and quashing on that basis is therefore not in itself unlawful, and the court is not required to set out every sentencing factor individually.
Three Justices dissented, taking the view that an appellate court’s inadequate statement of its reasons for quashing is not merely a sentencing question but a violation of law, and should accordingly be open to review on final appeal.
Two things follow for a defendant deciding what to do after sentencing. The first is that a reduction is not produced by the act of appealing; it is produced, if at all, by the case falling within one of the two situations the Court identified. The second is that the appellate court is not confined to reviewing the first instance for error — it holds sentencing discretion of its own, which is why the appellate stage, and not the final appeal, is where most sentences are in fact decided.
The same judgment closes a further door. The Court confirmed that a contention framed as a mistake of fact or insufficient examination as to the basis of sentencing is in substance a contention that the sentence is unjust — a characterisation that matters at the final appeal stage, as set out below.
What the prohibition on unfavourable change protects, and what it does not
Article 368 provides that a heavier sentence than that of the first instance may not be imposed in a case appealed by the defendant and in a case appealed for the benefit of the defendant. The protection is real, and it is also bounded by its own wording: it attaches to those two categories. Where the prosecution has also appealed, the case is not one appealed only by or for the defendant, and the protection does not operate. Article 396(2) applies the same rule where the Supreme Court quashes and renders judgment itself.
A separate provision governs a route that many foreign residents encounter first: the summary order. Where a formal trial is requested against a summary order, Article 457-2(1) prohibits the imposition of a punishment heavier in kind than that stated in the summary order, and Article 457-2(2) requires the reasons to be recorded in the judgment where a heavier punishment is imposed. The object of that provision is the type of punishment, which makes it structurally different from Article 368 rather than a duplicate of it.
The Supreme Court is not a third opportunity to argue the facts
Article 383 confines a final appeal to four grounds. The first three are a violation of the Constitution, an Act, an order or a rule that affected the judgment; the abolition or alteration of the punishment, or an amnesty, after the judgment; and the existence of grounds for a retrial. The fourth — a grave mistake of fact affecting the judgment, or a sentence markedly unjust — is available only where the death penalty, life imprisonment, or imprisonment for ten years or more has been imposed.
For the great majority of cases involving foreign nationals, that threshold is not met, and the consequence is structural rather than tactical: the sentence cannot be reopened at the Supreme Court at all. Read together with 2015Do3260, this is the reason the appellate court is the last forum in which the weight of a sentence is genuinely in play. Article 386 adds that counsel at the final appeal must be an attorney-at-law.
What a Korean sentence means when you are not a Korean national
For a Korean defendant the judgment fixes a penalty. For a foreign resident it also supplies the factual premise for decisions taken by a different authority under a different statute, and those provisions are worth reading as they are written rather than as they are usually reported.
Article 46(1) of the Immigration Act provides that the head of a local immigration or foreigner office may deport a foreign national falling under any of its subparagraphs, and subparagraph 13 covers a person who has been sentenced to imprisonment without labour or a heavier punishment and released. Article 46(2) provides that a person holding permanent residence status is not deported notwithstanding paragraph 1, with three exceptions — among them a person sentenced to imprisonment or imprisonment without labour for five years or more and released, as prescribed by Ministry of Justice Ordinance. Article 11(1) likewise provides that the Minister of Justice may prohibit entry in the listed cases, and subparagraph 6 covers a person who has left the country under a deportation order where five years have not yet passed.
Each of these is framed as a discretionary power, and each turns on an assessment made case by case on the individual circumstances. Nothing in the wording makes any outcome automatic, in either direction, and this article does not predict what any authority will decide.
What can be said with precision is where the two systems meet. The provisions above are keyed to the kind of punishment and, for permanent residents, to a numerical threshold in its length. Those are exactly the variables that remain open while an appeal is properly on foot, and that close when the criminal proceedings end. That is why, for a foreign resident, a decision taken in the seven days after sentencing reaches considerably further than the criminal file.
The first four weeks, reconstructed
The following is an illustrative reconstruction assembled from the statutory periods set out above and the reasoning in 2015Do3260. It does not describe any individual client, case or person, and contains no identifying details.
Day 0. The disposition is read out. The defendant hears a result, not reasons, and leaves the courtroom without the written judgment. The seven-day period under Article 358 has begun.
Days 1 to 7. The decision to be made is not what to argue but whether to appeal at all, and it has to be made and acted on within the week, at the court that gave judgment. A waiver or a withdrawal in this window is not reversible under Article 349, and Article 345 does not reopen a period that was allowed to run for reasons within the party’s own responsibility.
The interval. Then nothing visible happens. The record moves to the appellate court, and the calendar for the next step does not start until that court gives notice under Article 361-2(1). How long the interval lasts is not fixed by statute, which is precisely why the twenty days cannot be planned backwards from a date known in advance.
Days 1 to 20 after the notice. What is settled in this period is the frame of the dispute: whether the case is put as a mistake of fact, as a misapprehension of law, as an unjust sentence, or as a combination of them. Article 364(1) confines the appellate court’s adjudication to the grounds included in the statement, subject to its power of examination ex officio. Article 361-4(1) supplies the consequence of letting the period pass.
After that. The date on which the hearing will conclude is not set in advance. What has already been set, by then, is the question the appellate court will answer.
What is worth checking now
Four facts that determine what remains available
1. The date the judgment was pronounced — not the date any document arrived.
2. Whether the first instance was heard by a single judge or by a panel, which fixes the appellate court under Article 357.
3. Whether the prosecution has also appealed, which determines whether Article 368 operates at all.
4. The kind and length of the sentence imposed, which is what the provisions of the Immigration Act above are keyed to.
The period is short, and it does not pause for translation
Where the defendant is a foreign national, the appellate stage carries two questions at once — what the criminal court may still change, and what an administrative authority may later make of the result. Neither is answered by the disposition read out in court, and both depend on the reasoning in a written judgment that has to be obtained, read and assessed inside periods measured in days.
Yeohae Law Firm represents foreign nationals in criminal defence matters in Korea, including appeals, and reports in English throughout.
If a sentence has been pronounced, send the date of pronouncement, the court and case number, the offence and the sentence imposed, and your current status of stay. We will reply with an assessment of what remains open and a written fee proposal. Because the work varies so widely with the ground in issue, the length of the record and the stage reached, we do not publish a fixed fee schedule; we quote once we have seen the file.
Frequently asked questions
How many days do I have to appeal a criminal conviction in Korea?
Seven days from the pronouncement of judgment (Criminal Procedure Act, Article 358). The appeal petition is filed with the court that rendered the judgment, not with the appellate court (Article 359). The period runs from the pronouncement in court, not from the date any written document is received.
What happens if the statement of grounds is not filed within 20 days?
The appeal is dismissed by ruling (Article 361-4(1)), unless the appeal petition itself states grounds of appeal or there are matters subject to examination ex officio. An immediate appeal lies against that ruling (Article 361-4(2)). The twenty-day period runs from the notice that the appellate court has received the case record (Article 361-3(1)); it is the period for submitting the statement of grounds, and sentencing material and other evidence may still be submitted while the appellate hearing is under way.
What grounds of appeal are argued in practice?
Article 361-5 lists fifteen numbered grounds, four of which have been deleted, but three carry nearly all of the argument: misapprehension of law, which falls under subparagraph 1 and disputes the interpretation or application of the law; mistake of fact under subparagraph 14, which disputes the finding of fact itself; and an unjust sentence under subparagraph 15, which disputes only the weight of the penalty. They are frequently raised together.
Can my sentence become heavier if I appeal?
Article 368 prohibits a sentence heavier than that of the first instance in a case appealed by the defendant and in a case appealed for the benefit of the defendant. Where the prosecution has also appealed, the case does not fall within those categories and the prohibition does not operate. Separately, where a formal trial is requested against a summary order, Article 457-2(1) prohibits a punishment heavier in kind than that stated in the summary order.
Will the appellate court reduce my sentence?
Not as a consequence of appealing. In its en banc judgment of 23 July 2015 (2015Do3260) the Supreme Court held that where the sentencing conditions have not changed and the first-instance sentence falls within a reasonable range of discretion, the appellate court should respect it; the sentence must be quashed where it exceeded the reasonable limits of that discretion, or where material newly presented on appeal makes maintaining it unjust.
Can I argue about my sentence at the Supreme Court?
Only in a narrow class of cases. Article 383 confines a final appeal to four grounds, and the fourth — a grave mistake of fact, or a markedly unjust sentence — is available only where the death penalty, life imprisonment, or imprisonment for ten years or more has been imposed. In most cases the appellate court is therefore the last forum in which the weight of the sentence can be contested. Counsel at the final appeal must be an attorney-at-law (Article 386).
Does a criminal sentence in Korea affect my status of stay?
Article 46(1)13 of the Immigration Act is written as a discretionary power: the head of a local immigration or foreigner office may deport a foreign national who has been sentenced to imprisonment without labour or a heavier punishment and released. Article 46(2) provides that a permanent resident is not deported notwithstanding paragraph 1, subject to three exceptions including a sentence of five years or more as prescribed by Ministry of Justice Ordinance. Article 11(1) similarly provides that entry may be prohibited in the listed cases. These are assessments made case by case on the individual circumstances, and the statute does not make any outcome automatic.
Related reading: Embezzlement and Breach of Trust in Korea · Fraud Charges in Korea: What Foreign Nationals Need to Know · Drug Possession in Korea: What Happens After Arrest
