Korea allows a prosecutor, via approval by a court, the right to hold a defendant pending trial in a criminal case for up to 180 days. The approval by the Court is the granting of a Pretrial Detention Warrant, also, often referred to, in English, as Korean Arrest Warrant. In most cases, a decision, in a criminal case, must be rendered within 180 days of the time of the detention or the Defendant must be released from detention prior to the rendering of the judgment by the court. While bail is possible, in Korea, bail is not typically granted. In the not so distant past, when a prosecutor requested a Pretrial Detention Warrant (Pretrial Arrest Warrant), the court nearly universally approved this Pretrial Detention Warrant.
Prosecutors, normally, rarely fail to obtain a Pretrial Detention Warrant, however, with a proactive Korean Defense Attorney, often a release pending the disposition in a case is possible. The choice of counsel is, typically, the most important decision for a criminal defendant.
In Korea, this Pretrial Detention Warrant is called KuSok (구속). Two types of Pretrial Detention Warrants are available for the Korean Government. One warrant is a warrant to force the suspect to appear before the government and the other is to physically detain the suspect. The nuance between these two warrants is beyond the scope of this post, but I shall have a post in the near future about the differences. Also, search the blog for other articles via the search bar on the right of the blog.
Basics of Pretrial Detention Warrants in Korea
- Police may detain, in most cases, a suspect up to 48 Hours without a warrant.
- In order for the Korean Government to detain longer than 48 hours, in most but the most exceptional of cases, the Korean Government, via the Police, must obtain a Pretrial Detention Warrant from a Korean Court allowing the Korean Government to hold the suspect longer than 48 hours. If a Korean Court grants this Pretrial Detention Warrant, the Korean Government may hold the suspect for ten additional days. A prosecutor may request an additional twenty days of Pretrial Detention via the court (two ten-day extensions). In some limited cases, this period is extendable by more than 30 days (10 + 10 + 10).
- If the Korean Government wishes to hold a suspect past this 30-day period, in most cases, a prosecutor must formally indict the suspect. The Korean Government may hold an indicted suspect up to 180 days via the request of a prosecutor and approval by a court. The key is the suspect must be indicted.
- Korean Indictments are, typically, very cursory documents. Few Korean Indictments would survive U.S. Federal Court Scrutiny and, likely, would be dismissed for “failure to state an offense.” Indictments, in recent years, have included substantial more substantiating evidence and argument than in the not so distant past. We suspect further improvements.
Granting a Pretrial Detention Warrant
A Korean Court shall grant a Pretrial Detention Warrant if: the suspect is likely to have committed a crime; and
- the suspect has no residence;
- the suspect may destroy evidence; or
- the suspect may flee.
The aforementioned system is not applicable, in its entirety, to U.S Military Personnel and others individuals under the Status of Forces Agreement (SOFA).
If you, your friends or family are being questioned for a crime in Korea, it is advisable to, promptly, retain a proactive English-Speaking Korean Criminal Defense Attorney with substantial experience working with non-Koreans. We highly recommend utilizing the services of a senior retired Korean court judge.
Known for his proactive street-smart advice & non-conflicted advocacy, NY Attorney Sean Hayes works with leading retired Korean judges, prosecutors and experienced Korean attorneys in leading contentious and transactional matters in Asia. First non-Korean lawyer employed by the Korean Court System. SeanHayes@ipglegal.com
- Korea’s Criminal Procedure Act: Pre-Trial Detention in Korea
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- Bail Granted in Korea for Alleged Violations of Korean Banking Laws
- The Law of Self-Defense in Korea: Criminal Law Basics in Korea