Criminal Defense in Korea: Investigation Phase | English-Speaking Lawyer’s Guide
Navigating the criminal justice system in any country can be stressful. An English-speaking lawyer in Korea can help you understand your rights and the steps police and prosecutors take under the Criminal Procedure Act. This guide explains how investigations start, when arrests/detention are possible, and how prosecutors decide indictment vs. non-indictment. (For an overview of the court phase, see: English-Speaking Lawyer’s Guide to the Trial Phase).
Overview of the Investigation Phase in Korea
An investigation begins when law enforcement seeks to determine whether a crime has occurred and who may be responsible. This process involves questioning suspects and witnesses (and may include the arrest or detention of a suspect when necessary) and collecting or preserving evidence through methods like searches or seizures.
How a Criminal Investigation Begins
An investigation is typically initiated by one of the following:
– A criminal complaint filed by a victim;
– An accusation made by a third party;
– Police discovering of reasonable suspicion of a crime during their routine duties.
Police Investigation: Voluntary vs. Compulsory Measures
The police are typically the first responders in the criminal process. Even if a complaint is filed directly with the prosecution, the case is usually referred to the police for initial investigation. Police are responsible for conducting preliminary investigations, which include interviewing complainants, witnesses, and suspects, as well as collecting initial evidence.
The general principle governing criminal investigations is that they must be conducted based on voluntary cooperation of the parties involved. Accordingly, when investigative authorities wish to question a suspect or a witness, they contact the individual to arrange a mutually convenient time for questioning, rather than compelling their attendance.
While most criminal investigations in Korea begin with voluntary cooperation, investigative authorities may initiate a compulsory investigation if a suspect or witness refuses to comply with a request without just cause, or if there is a risk of flight or evidence destruction.
However, if an individual refuses to cooperate without just cause, or if there is a risk of flight or evidence destruction, authorities can initiate a compulsory investigation. This allows them to arrest and detain a suspect and conduct searches and seizures to secure evidence.
Arrest & Detention Basics (What Foreigners Should Know)
Under the Criminal Procedure Act, there are three forms of arrest:
- Arrest with a Warrant: This occurs when a suspect fails to comply with a summons from the investigative authority without just cause. In such cases, the investigative authority must obtain a warrant from a judge before making an arrest.
- Emergency Arrest: This allows an arrest without a warrant if the offense is serious (e.g., punishable by death, life imprisonment, or at least three years in prison) and there is an urgent risk of the suspect fleeing or destroying evidence, leaving no time to secure a warrant.
- Arrest of Flagrant Offenders: Anyone caught in the act of committing a crime (known as a “flagrant offender”) may be arrested on the spot without a warrant.
Once arrested, a suspect may be held for up to 48 hours. If the investigative authorities believe detaining the suspect is necessary, they must apply for a detention warrant within that 48-hour period, or otherwise, the suspect must be released.
After an arrest, authorities can hold a suspect for a maximum of 48 hours. Within this window, investigators must apply for a detention warrant from a judge if they believe longer-term custody is necessary; otherwise the suspect must be released.
Detention: A judge will only grant a detention warrant if there is probable cause that a crime has been committed and at least one of the following grounds exists:
- The suspect has no fixed residence;
- The suspect is considered a flight risk; or
- There is a risk of evidence destruction.
The detention period is limited to 10 days at the police stage and 20 days at the prosecutor stage.
Prosecution Investigation (Indictment vs. Non-indictment)
Recent amendments to the Criminal Procedure Act have changed the dynamic between police and prosecution investigation. The framework is as follows:
- Before: All cases investigated by police were, in principle, sent to the prosecution for a final decision.
- Now: Police have two primary paths.
- If they find no grounds for prosecution, they can independently close the case with a “non-referral decision.” However, if a complainant or related party files an objection, the case must still be sent to the prosecution for review.
- If police do find reasonable suspicion of a crime, they will transfer the case to the prosecution as before.
The grounds for a police non-referral decision largely mirror those for a prosecutorial non-indictment (discussed below). The key difference is that the police cannot base their non-referral decision on the ground of ‘suspension of prosecution’ (a form of discretionary leniency available to the prosecution).
Once a case reaches the prosecution (either from a party’s objection or from the police’s finding of suspicion), the prosecutor conducts a full review of the case. If further investigation is deemed necessary, the prosecutor may summon the suspect or witnesses for additional questioning before making a final decision. This decision will be either an indictment or a non-indictment.
An indictment can be either a summary indictment (for minor offenses likely to result in a fine) or a formal indictment, which sends the case to trial.
A non-indictment refers to the prosecutor’s decision not to file formal charges. There are four main grounds for non-indictment:
- Lack of Suspicion: The act does not constitute a crime, or there is insufficient evidence.
- No Culpability: Although the act meets the elements of a crime, grounds for legal justification exists (e.g., self-defense, or the suspect was a minor under criminal law).
- Lack of Prosecutorial Authority: A procedural prerequisite for prosecution is missing. Examples include, the court has no jurisdiction over the suspect; in cases where crimes are subject to prosecution on complaint, the complaint has been withdrawn; or in cases where crimes are not punishable against the victim’s will, the victim expresses no intent to punish the suspect.
- Suspension of Prosecution: Although the prosecution thinks that the suspect is guilty of a crime, the prosecutor may choose not to indict based on factors like the minor nature of the crime, the suspect’s motive, or personal circumstances (e.g., a settlement was reached with the victim).
Key Tips for Foreigners During Investigation
- Ask for an interpreter and remain silent until you consult counsel.
- Keep records (summons, notices, interview times).
- Engage counsel early, ideally before your first interview.
- Consider settlement (where appropriate) for offenses influenced by the victim’s stance.
Get Help from an English-Speaking Lawyer in Korea
An experienced criminal defense lawyer in Korea protects your rights, prepares you for questioning, seeks alternatives to detention, and advocates for non-indictment or the most favorable outcome. To speak with an English-speaking lawyer in Korea, contact Kang & Shin.