Police Officer: (Stops a passerby on the street) Hi, could I see some ID please?
Passerby: (Startled) Uh… Why??
Police Officer: There is a rally scheduled in this area. This is just a routine check.
Passerby: I’m late for work. Sorry, gotta go.
Police Officer: In that case, I will have to ask you to accompany me to the nearest police station for questioning.
I. Act on the Performance of Duties by Police Officers (경찰관직무집행법)
Article 3 of the Act on the Performance of Duties by Police Officers succinctly outlines what a person’s rights are under situations such as the above. I include Article 3 in its entirety because it’s pretty much all and everything you need to know.
Article 3 (Police Questioning)
(1) A police officer, by using reasonable judgement from a suspicious act or surrounding circumstances, may stop and ask a person questions when he has a considerable reason to suspect that the person has committed or is about to commit a crime, or when the person is believed to have knowledge of a crime already committed or to be committed.
(2) When it is deemed to be disadvantageous to the person or interfering with traffic flow, to ask questions at a certain place as referred to in paragraph (1), the police officer may demand him to accompany to the police station, area patrol unit, substation or branch office (hereinafter referred to as “police agency”, which includes a district marine police agency) in the vicinity to ask questions. In this case, such person may refuse the demand of accompanying the police officer.
(3) When directing questions to the person as referred to in paragraph (1), the police officer may investigate whether or not he carries any dangerous weapons with him.
(4) When a police officer asks questions or demands the person accompany him to the police agency under paragraph (1) or (2), he shall present to the person credentials indicating his identity, disclose the agency to which he belongs, his name, and explain the purpose and reason thereof, and when accompanied, disclose the destination to the person who he is accompanying.
(5) When accompanying the person to the police agency under paragraph (2), the police officer shall notify the person’s family or relatives, etc., of his identity, the destination to where the person is being accompanied, and the purpose and reason thereof, or offer the person an opportunity to make such contact immediately, and advise him that he has the right to receive an attorney’s assistance.
(6) When accompanied under paragraph (2), the police officer may not have such person stay in the police agency in excess of six hours.
(7) In the case as referred to in paragraphs (1) through (3), such person shall not have his body bound without recourse to the laws governing criminal procedure, and he shall not be compelled to answer any question against his will.
Translation by KLRI (Korea Legislation Research Institute)
I have summarized Article 3 below:
1) A police officer may stop and question (+ ask for ID) a suspicious person whom the officer has considerable reason (상당한 이유) that he/she has either committed a crime or is about to commit one. A police officer may also stop and question a person whom he believes has knowledge of a crime already committed or a crime about or be committed. So, stopping a random person for any other reason would be illegal. This includes citing nearby rallies as a reason.
2) Once a person is lawfully stopped, the police officer may ask him/her to accompany the officer to the police station only if: a) it would be disadvantageous to the person (to be questioned then and there) or b) asking questions then and there would interfere with traffic flow. Citing any other reason would be illegal. So, a person’s refusal to present an ID would not be a valid reason.
3) Once a person is lawfully stopped, the police officer may investigate (or search) for dangerous weapons.
4) When stopping a person or asking a person for accompaniment, the police officer must present his/her credentials, name, unit, the purpose of it all, and what police station they are headed to.
5) Even when a person agrees to go to the police station, the police officer must notify the person’s family/relatives the following: a) exactly where they’re headed + b) for what reason. The police officer could allow the person to contact his family/relatives him/herself. The police officer must inform the person of his/her right to an attorney.
6) Even when a person agrees to go to the police station, such a person may not be detained for more than 6 hours.
7) Most importantly, any request/demand mentioned here may be refused. Any request/demand by the police to answer questions, present ID, or go to the police station cannot be forced. Regardless of whether the stop was lawful or not. In short, a person is free to choose whether or not to comply with the requests/demands here.
FYI, the grounds for asking a person to present his/her ID is specified under Article 26 of the Resident Registration Act (주민등록법). The grounds are similar to the above.
Of course, one can always decide to comply with such requests/demands. I normally comply unless I feel the stop is highly irregular.
Back to the “Example Situation” above. What are some of the things that were unlawful on the part of the police officer? Most importantly, the following:
i) As we’ve learned, an impending rally in the area is not a valid reason to stop a person for questioning!
ii) The police officer failed to properly identify him/herself!
iii) As we’ve learned, refusal to answer questions is not a valid reason to ask a person to go to the police station!
In such case, if the police officer tries to take the person to the police station by force, that person may be justified in using (proper/necessary) force to stop the police officer from doing so. Such an action would constitute self-defense. Also, any police report or incriminating evidence obtained by means of a forced accompaniment (to the police station) would be inadmissible in court. When an officer requests a person to accompany the officer to the police station, that officer has to inform the person of his/her right to refuse. If no such warning was given, it’s highly likely any evidence obtained henceforth will be inadmissible as well.
Let’s consider another example situation:
There’s been a report of a stolen bicycle in the neighborhood. Police officers are trying to look for that stolen bicycle. That day, a random cyclist happens to ride a nice-looking bicycle past a police officer. The police officer tries to stop the cyclist for questioning. The cyclist ignores and rides past the officer. The officer catches up and forcefully stops the cyclist. The cyclist demands to be let go, but the officer blocks the cyclist’s path. The angry cyclist and the officer shove each other. Was the police officer justified in stopping/blocking the cyclist? Is the cyclist guilty of any crime?
Answer: This was a real case. The court said the police officer was justified in stopping the cyclist, but forcefully blocking the cyclist’s path was indeed unlawful. Consequently, the cyclist’s attempts to free himself was justified and constitutes self-defense. In the case, the cyclist was originally indicted for “Obstruction of Performance of Official Duties” under Article 136 of the Criminal Act (형법). The cyclist was found not guilty.
The Lesson: Even if a stop is lawful/warranted, one always has the right to refuse answering any questions and to proceed w/o interruption. An officer may try pleading with the person. But, an officer cannot force out an answer by physically blocking or holding on to the person. All must be based on consent. No one can be forced to do anything against his/her will.
In case of traffic stops, a vehicle may be stopped only when/for: 1) to test for drunk driving, 2) there is suspicion of driving w/o a license, or 3) there is suspicion of driving under extreme exhaustion. All other stops must be based on consent.
II. Warrantless Arrests under Korean Law
A warrant is normally required to make an arrest. But, there are two exceptions. Two instances when a warrantless arrest may be justified. They are:
1) Emergency Arrest (긴급체포) – Article 200-3 of Criminal Procedure Act (형사소송법)
The requirements are: 1) Seriousness: The crime involves a felony (w/ punishment of death, life imprisonment, or maximum imprisonment for at least 3 years) + 2) Necessity: There is reason to believe the suspect could destroy evidence or flee + 3) Exigency: There is not enough time to request and be issued a warrant under the circumstances. All three elements must be satisfied. The Miranda warning must be given as well!
2) Arrest of Flagrant Offender (현행범 체포) – Article 212 of Criminal Procedure Act
Arresting a person who is either in the midst of committing a crime or has just committed one. Anyone (i.e., not just a police officer) may arrest such a person. A civilian may temporarily arrest such a person only until police arrives. The Miranda warning must be given as well!
In Korea, it’d be highly irregular/unlawful to handcuff someone who is not under arrest. But when I watch American TV shows like Cops, I sometimes see police officers cuffing people who are not under arrest. As a precautionary measure. In a way, I understand this because police officers in the U.S. cannot help but always assume a person might be carrying a concealed weapon. In Korea, we have the luxury of assuming the opposite. A cop in Cops once said, “There is no such thing as a routine traffic stop.” That statement says it all. The 2012 Osan Handcuffing Incident, I believe, was an unfortunate example of directly applying American standard (law enforcement) procedure here in Korea. I was interested in the news because I received my interpretation officer training in Osan AB.
DID YOU KNOW?
In June 2014, the police set forth new guidelines regarding the use of handcuffs. In principle, all suspects must be handcuffed behind the back unless the suspect is undergoing questioning, and there is relatively little concern of danger to others or the suspect hurting him/herself.
In 2013, a total of 8 suspects got away by successfully uncuffing themselves. Once, a suspect told the police officers that his wrist was hurting and asked if they could loosen up the cuff (just a bit). The officers agreed, and he got away.
III. Just Remember This
When randomly stopped by the police, you always have the right to refuse to answer questions, the right to refuse to present an ID, and the right to refuse going to the police station. But, just because you have the right to refuse these requests/demands does not mean you “have to” refuse. Remember, police officers do have the right to ask. But, you have the right to refuse. It’s okay to comply. It’s all up to you.
Thanks for reading!