An overview of the criminal law system in South Korea

• Context      
• Arrest and detention
• Your rights under the Vienna Convention on Consular Relations
• The preliminary investigation
• The criminal trial
• Motion for objection to detention
• Duration of a trial and sentencing
• Transfer to a Canadian prison
• Death penalty cases

Please note that this document refers only to the Republic of South Korea (South Korea). If you are interested in the Democratic People’s Republic of Korea (North Korea), please consult the Travel Advice and Advisories for North Korea.

Context

This document is intended to give you basic information on how the South Korean criminal law system functions. It is not a substitute for legal advice, which can only be provided by a lawyer qualified to practice in South Korea. It should also be read in conjunction with the brochure A Guide for Canadians Detained Abroad.

If you break the laws of another country, you are subject to the judicial system of that country. Being a foreigner or not knowing the local laws is not an excuse. Global Affairs Canada can neither protect you from the consequences of your actions nor override the decisions of local authorities. The South Korean and Canadian criminal law systems are significantly different. This can increase the stress and practical problems arising from arrest and imprisonment in South Korea. For example, please note that in South Korea:

• foreigners are usually kept in detention throughout the investigation and trial process and bail is not commonly granted;
• you may be initially held without being officially charged for up to 48 hours; and,
• if you are found guilty of an offence, you will generally be deported after your sentence has been carried out.

The Government of Canada will seek to ensure you are not penalized for being a foreigner and that you are neither discriminated against nor denied justice because you are Canadian. It cannot, however, seek preferential treatment for you or try to exempt you from the due process of local law. The Government of Canada cannot interfere in the judicial system of another country, just as Canadians would not stand for another government interfering in Canada’s judicial process.

For further information on the services consular officials can and cannot provide, please consult the brochure A Guide for Canadians Detained Abroad.

Your choice of legal representation in South Korea can be critically important and should be made with care. Consular officials can provide a list of lawyers who have expertise in your particular type of case and who may have represented Canadians in the past. They cannot, however, recommend specific lawyers. You may prefer to hire a lawyer who is not on the list. This decision remains your responsibility. For further information, please consult the section on selecting a lawyer in the brochure A Guide for Canadians Detained Abroad.

Arrest and detention 

An arrest can be made by the Korean National Police Agency, a prosecutors’ office, or other agencies of the South Korean government such as the Korea Customs Office or the Korea Immigration Office, as well as any other special agent who has been vested under the law with the authority to make an arrest. Korean authorities may confiscate your travel documents, such as your passport, while you are under investigation or after arrest while you are in custody or detention. Please inform a Canadian consular official if this happens to you.

South Korean criminal law is applicable to both South Korean citizens and foreigners who commit crimes within the territory of South Korea. Since foreigners usually do not have a permanent residence in South Korea, investigative authorities frequently keep them in detention or under arrest throughout the investigation and trial process to prevent their departure from the country, particularly in cases involving felonies or serious crimes for which the prosecutors anticipate a prison sentence. Permanent residents in South Korea may not be detained pending investigation, as tampering with evidence and flight from prosecution are less likely.

In South Korea, you are presumed innocent until proven guilty. Under South Korean law, you may be arrested and detained when the investigating authorities believe there is sufficient evidence against you to justify detention and/or criminal charges. You can be detained from the time of arrest until a final verdict is issued in your case. You should consult your lawyer to learn how long you may be detained.

If you do not understand Korean, you are entitled to assistance from an interpreter certified by the South Korean government during interrogation by the authorities. You are also entitled to an oral translation of any written statement you may be required to sign. If an interpreter has not yet been appointed, you should request one. The skills of Korean-English interpreters can vary greatly, and skilled Korean-French interpreters are not as easily available.

Under South Korean law, you do not have to testify or answer questions that could be incriminating. You should be read your rights, such as the right to remain silent and the right to a lawyer, prior to or during an arrest.

Your rights under the Vienna Convention on Consular Relations

If you are detained or arrested abroad and wish to have Canadian consular officials notified, you should communicate that request clearly to the South Korean authorities. South Korean authorities have an obligation, under the Vienna Convention on Consular Relations, to advise you of your right of access to a consular representative. They are not, however, obliged to inform a Canadian consular post of your detention or arrest, unless you ask them to do so.

Under the convention, South Korean authorities are also required to forward any communication you address to a consular post. For example, if you write a letter to the Embassy of Canada or another Canadian consular office in South Korea, that letter must be delivered. This is in accordance with your rights to communicate with, and have access to, a consular official. These rights must be exercised in conformity with the laws and regulations of South Korea.

If you choose to speak with Canadian consular officials, any information you give them will remain confidential, subject to the provisions of Canada’s Privacy Act. It will not normally be passed on to anyone other than the consular officials concerned with your case without your permission. However, under the Privacy Act, personal information may be disclosed in certain circumstances, such as in cases where disclosure would clearly benefit you, where the public interest in disclosure clearly outweighs any invasion of your privacy, or pursuant to a court order. Please consult the Consular Services Privacy Notice Statement for more details.

At your meeting with a consular official, please inform him/her if the South Korean authorities did not inform you of your right to request that Canadian officials be advised of your arrest or detention, or at any time denied you the right to communicate with, or have access to, a Canadian consular official.

The preliminary investigation

Following the arrest, the investigating authorities will determine whether a crime has occurred, whether there are grounds to believe that you committed the crime, and make a recommendation. Based on that recommendation, the prosecutors will determine whether or not to proceed with the case. The prosecutors will also determine if you should remain in detention while the investigation continues. If you are to be detained further, the prosecutors will request a detention warrant (a judicial authorization that you be detained) from the Court. They must do so within 48 hours of your arrest; otherwise, you must be released. During the court hearing over the detention warrant, a court-appointed public defender will be provided for you if you do not have your own private lawyer. If the court grants the warrant, you will remain in police custody and will later be transferred to a detention centre.

In order to prevent long-term detention during the investigative stage of the case, South Korean criminal law limits the police investigation period to 10 days. Once the police have submitted the file and their recommendation to the prosecution, the law allows for another 10 days for the prosecution to review the case. The prosecution can seek an extension of an additional 10 days, if necessary. In the event the prosecution fails to issue an indictment (a formal accusation of a crime) during this period, you must be released from detention. You should proactively monitor the progress of your case and discuss any concern with your lawyer.

If the prosecution decides to file an indictment with the court and pursues the criminal case, a formal criminal court trial will be set. The prosecution is required to submit to the court all relevant evidence that they have gathered in the investigation. The law does not set any timeline for submitting evidence to the court.

The first trial is normally held within two to four weeks of the prosecution filing the indictment. You may be detained until the first court appearance of the trial. If you wish to have access to these documents or believe that information is missing, your lawyer may be able to advise you on the most appropriate options available to you.

Although bail is not common in the South Korean legal system, you have the right to seek it. Bail is rarely granted for people who are accused of serious crimes or foreigners charged with felonies. The bond for bail is usually paid in cash or by guarantee insurance policy. The amount will be set by the court. You should ask your lawyer about how bail may apply to your circumstances.

The criminal trial

In South Korea, trials are conducted both in writing and orally. Witnesses give testimony either live during a trial session or in writing submitted to the court. The lawyers for both sides also present their arguments to the court both orally and in writing, by submitting legal briefs. Foreigners are entitled to an interpreter throughout the trial. If an interpreter has not yet been appointed, you should request one.

In criminal cases, a defendant may be tried by a jury or by a judge. In 2008, South Korea introduced a jury system (“people’s participatory system”). The defendant has the right to be tried by a jury in criminal cases only, but has to file a motion for jury trial prior to the commencement of the court’s first trial session. If the defendant does not petition for jury trial, then jury trial will not be held. The Korean jury system is significantly different from the common law system. Therefore, you may wish to consult with a lawyer regarding whether a jury trial or judge-led trial is most appropriate for your matter.

Motion for objection to detention

In cases where the court has granted a detention warrant (see above), you can object to your arrest or detention by filing a motion for objection to detention. This motion typically addresses the legality of an arrest and whether due process and other formal requirements have been sufficiently met. The motion has to be initiated by you, and a different judge generally presides over the procedure. You should consult your lawyer if you are considering filing such a motion.

Duration of a trial and sentencing

In South Korea, there are usually several hearings: the trial does not occur in one or two sittings, but in many sessions. For a foreigner who is charged with drug offences or felonies, for example, there are usually one to three trial dates to go over the case. The length of time your case is before the court will depend in part on the number of other cases before this court. Since trial dates are generally at least two to three weeks apart, the case may last for several months. If you are not detained during the trial, the trial dates are usually four weeks apart. In the event you confess to the crime(s), the trial is usually limited to one session. A verdict is typically rendered within a month of the final trial date, though it may take longer in some cases.

If a verdict results in a prison sentence, the time you have already spent in prison counts toward the fulfillment of the sentence. You have the right to appeal the sentence within seven days of the announcement of the verdict, as does the prosecutor. You should consult your lawyer before filing an appeal.

If you are declared not guilty, you will usually be released on the same day after returning to the detention centre to clear administrative matters and recover personal belongings. Since the prosecutor still has a right to appeal this verdict, foreign defendants are often not permitted to leave South Korea until the appeal period has passed, or until the case is finalized in the appeals process.

If you are found guilty, the possible outcomes include:

• a penalty or a fine;
• a prison sentence; or
• probation.

The Korea Immigration Office may assume authority over a foreigner convicted of breaking South Korean law. If you are released on probation, the Korea Immigration Office may detain you and will usually deport foreigners convicted of a felony or serious crime.You should ask your lawyer to explain what deportation options may apply to your circumstances.

Transfer to a Canadian prison

South Korea and Canada are both signatories to the European Convention on Extradition, which, under certain circumstances, enables Canadians convicted of offences in South Korea to serve their prison sentence in a Canadian penal institution if both the Canadian and South Korean governments consent to the transfer. Transfers are not automatically granted. An application for transfer can be submitted only after you have been convicted and sentenced. You should consult your lawyer if you are considering applying for a transfer. For further information on transfer requests, please consult the brochure A Guide for Canadians Detained Abroad.

Death penalty cases

While the death penalty has not been carried out in South Korea for several years, the Supreme Court of Korea ruled in 2010 that it remains an option in exceptional cases.