The Korean Criminal Justice System works, in many aspects, very differently from the American Criminal Justice System.
One aspect of the system that leaves many of our clients puzzled is the pre-trial detention system in Korea. Korea’s Criminal Procedure Act Article 92 details the maximum detention periods while the Korean prosecutor’s investigation is pending. The following does not apply, in many respects, to those under the SOFA:
- After being arrested, a defendant may be held for up to 48 hours without being officially charged. In the United States, in most cases, a defendant may, only, be held for 24 hours.
- Depending on the charges in the case, criminal defendants will be held in jail throughout the entirety of the prosecutor’s investigation. The opportunity for bail is very limited. This means that, after the initial hearing in front of a Korean judge an arrest warrant will likely be issued for your arrest and you may spend a maximum of two months in jail while the prosecutor builds their case. These two months may be extended for up to six months. A sentence, in most cases, must be delivered within six months of detention. In the United States, bail is given to a defendant in all but the most exceptional of cases.
These facts show that, beginning immediately after detention, the clock starts ticking on your freedom. You can quickly go from freely walking the streets of Korea to suddenly being locked up for six months before you are even sentenced. The representations of the police that if you cooperate – all will just go away – is, typically, not true. Once you’re behind bars, it will be extremely difficult to manage your defense or take necessary steps to acquire legal representation in Korea that is adequate for your needs. Plan ahead.
We also find that being the focus of a criminal investigation, in Korea, tends to stress clients out so much that they don’t think clearly about how to deal with their situation. Clients, naturally, become defensive, insecure as to what to do, make rash decisions, and even sometimes break down emotionally – all at a time in their lives when keeping a clear head is perhaps the most crucial thing of all. Find a trusted friend or family member that will assist in making decisions.
We can’t stress enough, the choice of a criminal defense attorney is critical. When your freedom is at stake, you need defense lawyers with experience and grit – not a mere paper pusher.
Other articles on Korean criminal law that may be of interest:
To read Article 92 of Korea’s Criminal Procedure Act please click:
Article 92 (Detention Period and its Renewal)
To read the Korea’s Criminal Procedure Act click:
Criminal Procedure Act
Sean Hayes may be contacted at: [email protected]m.
Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw.
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