Are you a foreign national facing criminal charges in Korea? Navigating the local legal system can feel overwhelming, especially with the added challenges of language barriers and cultural differences. This guide offers an overview of the criminal defense process in Korea, with a special focus on Korean criminal investigation procedures, highlighting the crucial role a skilled Korean criminal defense attorney plays during this critical stage.

Understanding the Korean Criminal Justice Process

The criminal justice process in Korea follows several key stages: investigation, detention, prosecution, trial, and appeal.  Among these, the criminal investigation process is particularly important because it can shape the outcome of your case.  This is where evidence is gathered, suspects are questioned, and decisions about detention are made.  For foreign nationals unfamiliar with Korean legal practices, understanding what happens during this phase—and having a skilled criminal lawyer to guide you—is essential to protecting your rights.

Investigation

Suspect Interrogation

The Korean criminal justice process begins with an investigation conducted by either the police or the prosecutor’s office.  The investigation starts by taking statements from the complainant, followed by interrogating the suspect.  

As a foreign national, you will receive a summons or a phone call from the police or prosecution, requesting your presence for an interview.  If the suggested time is inconvenient, you can reschedule by contacting the authorities in advance.  While you are not legally obligated to comply with the summons, failing to appear may result in an arrest warrant being issued.

Read More: How to Resolve a Criminal Investigation Pending in Korea While Residing Abroad

Read More: How to Cope with the Korean Police’s Summon for Criminal Investigation

How the Interrogation Is Conducted

During the investigation, authorities will interview the suspect, the witnesses and may arrange face-to-face interrogations between the complainant and the suspect.

When questioning a foreign national, the authorities must provide an interpreter to ensure that you understand the proceedings. 

After the interview, the investigator will draft a summary statement based on the questions and answers exchanged.  This is not a verbatim transcript but a concise summary.  You will have the opportunity to review the statement to verify that it accurately reflects their testimony.

The Role of a Korean Criminal Defense Attorney

It is critical to have a criminal defense attorney present during questioning to protect your rights.  The role of the attorney during suspect interrogation, however, is not the same as in a courtroom, where the focus is on challenging the prosecutor’s case or debating guilt.  Instead, the attorney’s primary role is to monitor the interrogation process and ensure that investigators do not engage in any illegal activities, such as using violence, threats, or deceit. 

In cases where the suspect is a foreign national, a Korean criminal defense attorney can also facilitate smooth communication between the investigators and the foreign suspect, ensuring that there are no misunderstandings during the interrogation and that your statements are properly recorded.

Warrants for Searches

A warrant is required for searches.  The police must seek approval from the prosecutor’s office, and a judge will determine whether to grant the warrant.
 

Detention

Conditions for Detention

One important aspect of the Korean criminal justice system is the detention process.  Detention may occur if there are reasonable grounds to suspect that the individual has committed a crime under the following conditions:

1. The suspect has no fixed address
2. There is concern about the destruction of evidence, or
3. There is a risk of flight

Detention must be authorized by a warrant, which is requested by the prosecutor and issued by a judge. 

When executing an arrest warrant, the authorities are required to inform the suspect of the main charges, the reason for detention, and their right to appoint an attorney, while giving the suspect a chance to explain themselves.

Exceptions to the Warrant Requirement

There are certain situations where a suspect may be arrested without a warrant.  This is permissible in the situation of emergency if there are reasonable grounds to believe the suspect has committed an offense punishable by death, life imprisonment, or imprisonment for more than three years, and if there is concern about flight or evidence destruction, requiring urgent action. 

Additionally, law enforcement may arrest a flagrant offender—someone caught in the act of committing a crime—without a warrant.  

If a suspect is arrested under an emergency arrest or as a flagrant offender, authorities must request a detention warrant from a judge within 48 hours.  If no warrant is requested or issued within that time, the suspect must be released immediately.

Duration and Extensions of Detention

For those detained by a police officer, the detention period cannot exceed ten (10) days, and extensions are not allowed. 

When a suspect is transferred to the prosecutor’s custody, the prosecutor can hold the suspect for an additional ten (10) days from the date when they take the custody of the suspect.  With a judge’s approval, the prosecutor may extend the detention by another ten (10) days, if further investigation is deemed necessary.

Hearing and Bail

Pre-Arrest Detention Hearing

In cases where an arrest warrant has been requested, a pre-arrest detention hearing (known as “구속영장실질심사” in Korean) must be held. 

During this process, a judge does not rely solely on the investigation records but directly interrogates the suspect regarding matters necessary to determine whether detention is warranted.  This system ensures that the suspect’s rights to defense and face-to-face contact with the judge are fully protected.  During the interrogation, the suspect can request assistance from their Korean defense attorney.

After the hearing, the judge will decide whether to issue the arrest warrant.  If the judge determines there are insufficient grounds for detention, the suspect will be released from custody.  However, if the warrant is issued, even suspects who were not previously arrested will be detained from that point onward.

Detention Review  

Detention review (known as “구속적부심사” in Korean)  is held per petition from the side of the detained suspect after the detention warrant was issued.  This allows the court to re-assess whether the arrest was lawful and whether continued detention is necessary.  

If the court finds that the detention is either illegal or unjustified, the suspect will be released.  In certain cases, the judge may order the suspect’s release on bail, referred to as pre-indictment bail (known as 기소전 보석 in Korean), if the suspect deposits a sufficient bond to ensure their appearance in court.  During the bail hearing, the suspect’s criminal attorney can submit favorable arguments and evidence.  A decision on the bail request is made within 24 hours after the hearing is concluded.

It is notable that a detention review is not a trial regarding the suspect’s guilt or innocence.  Even if released, the suspect can still face prosecution and trial, where guilt and sentencing will be determined.

Restrictions on Re-Detention

Once a person detained by either the prosecutor or the police is released, they cannot be detained again for the same offense unless new, significant evidence is discovered.

Prosecution

Authority of the Prosecutor

In Korea, only the prosecutor has the authority to decide to bring charges.  Even in cases where the investigation is led by the police, the case must be referred to the prosecutor’s office for a final decision of prosecution.  The prosecutor may decide not to press charges if the evidence is insufficient or if the alleged conduct does not meet the legal criteria for a crime.

Suspension of Indictment and Non-Indictment

Even when sufficient evidence exists to support prosecution, the prosecutor may still exercise discretion to suspend the indictment, meaning no charges will be filed.  This decision may consider factors such as the suspect’s character, severity of the offense, and any other mitigating circumstances. 

If evidence is lacking or the alleged conduct does not constitute a crime, the prosecutor will issue a dismissal of charges, known as a non-indictment disposition.

Additionally, a non-indictment disposition can also be issued if:

1. The statute of limitations has expired, or
2. In cases involving offenses that require a victim’s consent for prosecution, the victim withdraws their complaint or agrees not to press charges.

This decision effectively closes the case, although complainants who are dissatisfied with the non-indictment decision may file an appeal. 

Legal Assistance in Negotiating with the Prosecution

A skilled Korean criminal defense attorney plays a vital role during this phase, negotiating with the prosecutor to potentially reduce the charges or even seek a dismissal of the case before trial.  This can be especially important in cases where there may be weaknesses in the prosecution’s evidence or other factors that could lead to a favorable outcome for the defendant.

Rights of Criminal Suspects in Korea

Foreign nationals facing criminal charges in Korea have several essential rights to ensure fair treatment and protection against arbitrary law enforcement actions.

1. Right to Remain Silent: Every suspect has the right to remain silent during questioning, which must be communicated by law enforcement before any interrogation begins.  This means you are not obligated to answer any questions that may incriminate you.
   
   
   
2. Right to Legal Counsel: You have the right to an attorney during both police and prosecutorial investigations.  Having legal representation is vital during questioning to ensure no undue pressure is applied and that your rights are respected.  You also have the right to consult privately with your attorney without interference.
   
   
   
3. Right Against Unlawful Search and Detention: Any search, seizure, or arrest must be supported by a court-issued warrant.  Law enforcement must provide valid reasons for their actions, backed by substantial evidence presented to the court.
   
   
   
4. Right to Bail: If you are detained, you have the right to request bail.  Bail is granted if the court determines that you are not likely to flee or tamper with evidence. 
   
   
   
5. Right to Humane Treatment: While in detention, suspects have the right to humane treatment.  This means proper living conditions, access to medical care, and protection against physical or psychological abuse. 

 

Role of a Korean Criminal Defense Attorney

While rights for criminal suspects are legally recognized in Korea, protecting and ensuring these rights in individual cases is a key role of a defense attorney.  It is not enough for these rights to exist on paper; the presence of a skilled attorney is essential to ensure that these protections are enforced throughout the legal process, particularly for foreign nationals who may face additional challenges.

Particularly for foreign nationals who may be unfamiliar with the legal system, Korean criminal defense attorney plays a crucial role at every step of the process including the following:

• Language and Cultural Barriers: A Korean criminal attorney serves as a bridge between you and the Korean legal system, helping you understand the intricacies of Korean criminal law and court procedures, while also ensuring that you fully understand your rights and the potential consequences of each action.
  
  
  
• Legal Representation During Investigation: The investigation stage is critical, as anything said to the police or prosectors can be used in court.  Criminal defense lawyers will ensure you do not inadvertently say or do anything that could harm your case.  They also safeguard your rights during questioning and monitor for any violations or undue pressure.
  
  
  
• Negotiation and Defense Strategy: Primarily, a criminal defense attorney fights for your innocence, submitting favorable arguments and evidence in the form of written opinions to investigative authorities.  This approach helps influence the decision to avoid prosecution where possible.  If guilt is admitted or likely, the attorney can also negotiate with prosecutors to reduce charges or reach a settlement that may prevent a lengthy trial.  Additionally, the attorney may mediate with Korean victims on your behalf, working toward a settlement or reconciliation, which can help reduce the severity of punishment or avoid it altogether.  By combining legal strategy and negotiation, the attorney maximizes your chances for a favorable outcome.
  
  

Our Experience in Criminal Defense for Foreign Clients

Our legal team has extensive experience as English Speaking Korean criminal defense attorney in a wide range of criminal cases in Korea. Below are some examples of our successes:

1. False Assault Allegations by a Korean Spouse: In one case, a Korean wife falsely accused her foreign husband of multiple cases of assault, intending to create evidence for a divorce.  We represented the husband and successfully demonstrated that the evidence was fabricated and the wife’s statements were inconsistent and contradictory.  This led to a no-indictment decision from the prosecutor and, for other charges, a not-guilty verdict from the criminal court.
   
   
   
2. False Child Abuse Allegations for Custody Gain: In another case, a Korean wife falsely accused her foreign husband of child abuse to gain custody during their divorce proceedings.  Using CCTV footage, we could prove our client’s innocence, leading to a non-indictment decision.  For the remaining charges, we obtained a not-guilty verdict through thorough witness examinations.
   
   
   
3. Violation of the Foreign Exchange Transactions Act: In a case involving a violation of the Foreign Exchange Transactions Act, We successfully reduced the prosecutor’s fine in a summary judgment by half, and we argued that the confiscation of 150 million KRW was without legal basis, resulting in the full return of the seized amount.
   
   
   
4. Breach of Fiduciary Duty and Embezzlement in Business Arrangements: In multiple cases where our clients were accused of breach of fiduciary duty and embezzlement in business, we successfully secured either a not-guilty verdict or a decision of no indictment, protecting our clients from criminal penalties.
   
   
   
5. Violation of the Military Service Act: Our client, a U.S. citizen who had formerly held Korean nationality, was accused of violating the Military Service Act.  Residing abroad throughout the process, we successfully argued that prosecution was legally impossible due to the statute of limitations and misinterpretation of law. This resulted in a non-indictment decision.
   
   
   
6. IT Business Crime: In a case involving a business based on Google search ads, we secured a Supreme Court ruling that confirmed the client’s business did not constitute the crime of interference with the stable operation of the Internet network.
   
   
   
7. Other Cases Involving Foreign Nationals: In addition to the above, we have handled numerous personal cases involving foreign nationals, including U.S. military personnel, contractors, and expats accused of offenses such as DUI, licensing issues, fraud, defamation, sexual crime and drug-related cases.  In these instances, we were able to thoroughly explain both the legal circumstances and our clients’ personal situations to prosecutors, resulting in non-indictment decisions or reduced fines.
   
   Read More: [Q&A] Criminal Charge and Its Legal Implications to Exit Order, Entry Ban and Visa Refusal in Korea
   
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Why Choose Us?

Facing criminal charges in a foreign country can be daunting, but with the right legal support, you can navigate the process with confidence. Our law firm has a proven track record of successfully defending foreign nationals in Korea.  We understand the complexities involved in criminal cases, especially for those unfamiliar with Korean law, and we are committed to providing the highest level of legal representation to protect your rights.

Our extensive experience spans a wide range of cases, from false accusation and violations of financial regulations to military service issues and personal offenses like DUI and drug-related cases.  We not only focus on the legal theories but also present the personal circumstances of our clients, working toward non-indictment decisions or reduced penalties.

If you need assistance, do not hesitate to reach our to us by clicking the contact button below.  We are here to help you through every step of your case.  

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Because of the generality of this update, the information provided herein, which may or may not reflect the most current legal development, may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.