Navigating the criminal justice system in any country can be a daunting experience. For foreigners in South Korea, language and cultural barriers can add significant layers of stress and confusion. As an English-speaking Korean lawyer with knowledge in both Korean and U.S. legal systems, I aim to shed some light on the criminal process in Korea.
The Korean criminal procedure is broadly divided into two main stages: the investigation phase, led by police and prosecutors (covered in this article), and the court phase, which includes the trial and appeals (to be discussed in a separate article on the trial phase).
It’s important to note that Korea’s legal system is primarily based on a civil law system, which differs fundamentally from the common law system found in countries like the U.S. This distinction influences how investigations are conducted and how trials proceed.
The Investigation Phase
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.
1. How an 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.
2. Police Investigation
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 and Detention
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.
3. Prosecution Investigation
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).
Final Note: Legal Help for Foreigners Facing Criminal Investigation in Korea
As outlined above, the Korean criminal investigation process in Korea can be complex, especially for foreigners unfamiliar with the system. This article provides a general overview of the investigation phase under Korean criminal law, but every case involves unique facts and legal considerations.
If you are a foreign national under investigation in Korea, it is essential to consult with an experienced English-speaking lawyer in Korea as early as possible, ideally before any questioning. While a lawyer cannot change the facts, skilled legal representation ensures that your rights are protected throughout the Korean criminal procedure and increases your chances of achieving the best possible outcome.
For legal assistance in Korea, or to speak with an English-speaking Korean attorney, please contact us.