Question08: What are the regulations governing ‘application for reconsideration’?
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- Last updated：2019-04-02
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Answer: In the Code of Criminal Procedures (hereinafter as the “Code”), it is prescribed under Article 256 Paragraph 1 that “[w]ithin seven days after receipt of a written ruling not to prosecute or a written ruling of deferred prosecution, a complainant may make an application in writing for reconsideration of the ruling, setting forth his reasons for dissatisfaction, through the original public prosecutor to the chief public prosecutor for the immediate superior Court or public prosecutor general; provided that if consent of the complainant has been obtained prior to the ruling was made under Articles 253 and 253-1, he may not make application for reconsideration.” In Article 257 of the Code: “If the original public prosecutor considers that the application for reconsideration is well-grounded, he shall set aside his ruling and continue the investigation or initiate a prosecution except for the circumstances specified in the preceding section” (Paragraph 1). “If the original public prosecutor considers that the application for reconsideration is groundless, he shall immediately send the file and exhibits of the case to the chief public prosecutor of the higher court or the public prosecutor general” (Paragraph 2). “An application which is not filed within the time prescribed in the preceding two articles shall be dismissed” (Paragraph 3). “If the chief public prosecutor of the original court considers it necessary, he may, before the case is forwarded in accordance with the provisions of section II, personally investigate or order another public prosecutor to investigate or review to determine whether the original ruling should be set aside or upheld; if the original ruling is upheld, the case shall immediately be forwarded” (Paragraph 4). It is prescribed under Article 258 of the Code that “[i]f the chief public prosecutor of the higher court or the public prosecutor general considered that an application for reconsideration is groundless, he shall dismiss it; if he considers that the application is well-grounded, he shall set aside the original ruling under the circumstances specified in Article 256-1, or perform one of the following under the circumstance specified in Article 256: [(1)] If the investigation is incomplete, he may personally investigate or order another public prosecutor to investigate, or order the public prosecutor of the original court to continue it; [(2)] If the investigation has been completed, he shall order the public prosecutor of the original court to initiate a prosecution.” In Article 258-1 of the Code: “If the complainant disagrees with the ruling of dismissal specified in the preceding article, he may, within ten days after receipt of written ruling of dismissal, retain an attorney to make an application in writing, to the concerned court in first instance, for setting the case for trial” (Paragraph 1). “An attorney being retained as referred to in the preceding section may examine the file of the investigation and the evidence, and to make hand writing copy or photos, provided that it may be restricted or prohibited if the subject matter being examined involves other case that shall not be disclosed or shall be kept secret” (Paragraph 2). “The provision of section I of Article 30 shall apply mutatis mutandis to the circumstances specified in the two preceding sections” (Paragraph 3).