Korean Criminal Law & Korean Criminal Procedure Law: An Overview

Korea’s criminal justice system has undergone substantial evolution over the past few decades, becoming a system that affords more rights to the accused and empowers the police with increased investigative powers. For foreign companies and individuals facing investigations and prosecutions, understanding the basics of Korean criminal law and procedure is essential.

IPG Legal has represented clients in high-stakes criminal matters in Korea, encompassing corporate compliance investigations, white-collar defense, and the prosecution of individuals. IPG Legal has earned over 70 not guilty verdicts for clients in Korean courts throughout Korea and 100s of suspended jail sentences.

This article provides a practical overview of the Korean criminal law and Korean criminal procedure law. For more information on Korean criminal law, please see: IPG Legal’s Criminal Law Archive.

Overview of Korean Criminal Law & Criminal Procudure Law

Korean Criminal Law

The primary source of Korean criminal law is the Korean Criminal Act (형법, Hyeongbeop). It sets forth general principles of criminal liability, defenses, and punishments, as well as defining specific crimes such as murder, rape, theft, fraud, assault, drug importation, and embezzlement.

Other statutes, in Korea, such as the Korean Aggravated Punishment of Specific Crimes Act, the Korean Punishment of Sexual Crimes Act, Improper Solicitation and Graft Act of Korea, Korean Serious Accidents Punishment Act, and the Korean Financial Investment Services and Capital Markets Act, create specialized offenses and often harsher penalties for violators. Some statutes in Korea impose mandatory minimum sentences.

Investigative Authorities in Korea

The Korean Prosecutors’ Office (검찰청) and the Korean National Police Agency (경찰청) are the primary investigative bodies in Korea.

• The Police: In most cases, the Police handle initial investigations, evidence gathering, and questioning of suspects and witnesses.
• Prosecutors: In many cases, Prosecutors direct and supervise police investigations, decide whether to indict, and represent the state in court. Prosecutors, in many cases, conduct direct investigations of suspects and witnesses.

Recently, reforms have sought to shift some investigative authority away from prosecutors to the police, but prosecutors still retain decisive influence. Changes are proposed by the present administration, and we shall update the reader when more is known and if these changes are passed into law.

Korean Criminal Procedure

1. Investigation and Detention in Korea

Suspects may be questioned voluntarily or compelled under a warrant system. Detention beyond 48 hours requires judicial approval in most cases. Korean Courts generally grant prosecutors’ requests for detention, especially in cases involving financial or violent crimes; however, release pending trial is possible. For additional information on pre-trial detention in Korea, please see: Korean Pre-trial Detention Basics under the Korean Criminal Procedure Law.

2. Indictments in Korea

Unlike some common law jurisdictions, Korea does not have a jury-based grand jury indictment system. The prosecutor’s decision controls whether a case proceeds to trial. Thus, in all but the most exceptional of cases, the sole deciding factor in whether a suspect is indicted is the Korean Prosecution.

3. Korean Trial/Hearing Process

Korea’s trials are judge-driven. While Korea has experimented with advisory citizen participation trials in certain cases, judges remain the final decision-makers. Trials are relatively fast, with hearings often scheduled weeks apart.

4. Sentencing in Korea

Sentences may include imprisonment, fines, suspended sentences with probation, and, in limited cases, community service. The Korean Supreme Court’s Sentencing Commission issues non-binding guidelines, but courts retain discretion. In some cases, judges are mandated to impose a jail sentence based on mandatory minimum sentences, and in all but the most extreme cases do judges depart from sentencing guidelines.

Corporate and White-Collar Crime in Korea

Korea aggressively enforces laws against bribery, embezzlement, tax evasion, industrial accidents, insider trading, and violations of competition laws. Corporate executives can face personal criminal liability, and companies may be subject to dual punishment provisions (holding both the corporation and responsible officers liable). Compliance failures, especially in the financial and securities sector, can trigger parallel investigations by the Financial Supervisory Service (FSS), the Fair Trade Commission (FTC), and criminal prosecutors.

Victim Rights and Private Prosecutions in Korea

Korean law grants victims significant procedural rights, including the ability to file complaints (고소) and to participate in sentencing hearings. Victims of certain offenses may also initiate private prosecutions, though these are rare and generally limited to supplementing prosecutorial action. Compensation to victims is often a decisive factor in sentencing. In practice, restitution and settlement can significantly reduce criminal exposure.

IPG Legal

At IPG Legal, we have defended multinational executives, expatriates, and Korean nationals in complex criminal cases across the country. If you or your company is under investigation or requires guidance on compliance, contact us. Early, strategic legal advice can often mean the difference between an indictment and an early resolution.

by Sean Hayes

Sean Hayes 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 a few non-Korean lawyers as a Top Attorney by AsiaLaw. Sean is regularly quoted by leading international media sources, including the Wall Street Journal, New York Times, France 24, and Bloomberg.

IPG Legal is consistently ranked a Top Dispute Resolution Law Firm for our litigation, arbitration, and mediation services, and IPG Legal is consistently rated a top-tier law firm in corporate law, litigation, arbitration, franchise law, distribution law, estate law, family law, employment & labor law, and criminal defense.

To schedule a call with Sean Hayes, please Schedule a Call Here.