Korean Law Demystified!

What is 구속?

Normally translated as “detention” or (simply) “arrest,” 구속 is a sort of “prolonged arrest” that is only found in Korean and Japanese criminal procedure. (The problem with translating it simply as “arrest” is that we already have a corresponding term, which is “체포.” I would maybe prefer “detention” over “arrest.”)

In a nutshell: The purpose is to, “ensure the rightful execution of criminal procedure and/or eventual punishment.” Like arrests, a warrant (by the court) is required. A prosecutor applies for a warrant either for him/herself or on behalf of the police. This application should be made at least 48 hours within an arrest. In principle, 구속 can be granted for 10 days max . When this period is about to expire, the prosecution (but not police) can ask for an extension (i.e., an additional 10 days). So during an investigation, 구속 can last for a max of 30 days (i.e., 10 days by police + 20 days by prosecution). Once indicted/prosecuted, the court can further 구속 a defendant for up to 6 months (during each stage of the trial).

A court will issue/approve a warrant for 구속 when: There is considerable suspicion the suspect has committed a crime + a) S/he is not specifically residing anywhere, or b) There is concern of s/he might go destroy evidence, or c) Concern s/he might flee.

DID YOU KNOW? There are actually 2 types of 구속 warrants. One is to force the person to appear (i.e., 구인영장); the other is to confine/detain such a person (i.e., 구금영장). The latter warrant includes the former, but not the other way around.

What is 구속영장실질심사제도: Before a judge can issue/approve a warrant for 구속, the law requires him/her to interview (at length) the suspect (w/o delay). The judge can/will appoint a public defender (if need be). The judge must reject the request for a warrant if: a) there’s been procedural violations, or b) there’s not enough evidence to support the need for 구속.

Happy Easter, I will try to write some more next time! 🙂

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