Key Provisions of the ‘Act on the Performance of Duties by Police Officers’ and the ‘Police Investigation Rules’ in South Korea
The Big Picture
1. The Act on the Performance of Duties by Police Officers
A. Purpose and basic principle
The Act on the Performance of Duties by Police Officers (the “Police Duties Act”) has as its purpose to provide the matters necessary for police officers’ performance of duties to protect the people’s freedom and rights and the inviolable fundamental human rights of every individual, and to maintain public order in society. The authority of a police officer provided in this Act must be exercised to the minimum extent necessary for the performance of duties, and must not be abused (Police Duties Act, Article 1; Supreme Court, Dec. 13, 2018, 2016do19417; Incheon District Court, June 4, 2024, 2023no500).
B. The scope of duties
Article 2 of the Police Duties Act provides for the scope of duties a police officer performs as follows.
| Subparagraph | Duty |
|---|---|
| 1 | Protection of the people’s life, body, and property |
| 2 | Prevention, suppression, and investigation of crime |
| 2-2 | Protection of crime victims |
| 3 | Guard duty, security of key figures, and the conduct of counter-espionage and counter-terrorism operations |
| 7 | Maintenance of public peace and order |
That said, this scope of duties corresponds to the abstract authority and scope of duties a police officer may perform, and the officer may exercise the concrete authority granted by relevant statutes such as the Police Duties Act and the Criminal Procedure Act only for the purpose of performing such duties. Even where there is a purpose of performing a duty provided in the subparagraphs of Article 2 of the Police Duties Act, acts other than the concrete authority granted by relevant statutes cannot be done, or must be interpreted very restrictively (Uijeongbu District Court, Goyang Branch, Aug. 20, 2021, 2021godan500).
C. Stop-and-question and voluntary accompaniment (Article 3)
Article 3 of the Police Duties Act provides for stop-and-question and voluntary accompaniment. The main points are as follows (Police Duties Act, Article 3).
1) Duty to give notice when requesting accompaniment
When questioning or requesting accompaniment, a police officer must present a token indicating his identity while stating his affiliation and name, and explain the purpose and reason of the questioning or accompaniment; and when requesting accompaniment, must state the place of accompaniment (Police Duties Act, Article 3(4)).
2) Guarantee of rights after accompaniment
A police officer must inform the family, relatives, or the like of the accompanied person of the accompanying officer’s identity, the place of accompaniment, and the purpose and reason of the accompaniment, or give the person himself an opportunity to contact them immediately, and must inform him that he has the right to the assistance of counsel (Police Duties Act, Article 3(5)).
3) Prohibition on detention exceeding 6 hours
A police officer may not have the accompanied person remain at the police office exceeding 6 hours (Police Duties Act, Article 3(6)). However, this provision does not permit a voluntarily accompanied person to be confined at the police office for 6 hours.
D. Prevention of the occurrence of danger (Article 5)
Article 5 of the Police Duties Act provides for the measures a police officer may take when there is a natural disaster, an incident, the damage or collapse of an artificial structure, a traffic accident, the explosion of a dangerous object, the appearance of a dangerous animal or the like, extreme congestion, or any other dangerous situation that may harm a person’s life or body or cause serious damage to property (Police Duties Act, Article 5).
E. Prevention and restraint of crime (Article 6) — the most important provision in practice
1) Text of the provision
Article 6 of the Police Duties Act provides that “when it is recognized that a criminal act is about to be committed right before one’s eyes, a police officer may give the persons concerned the necessary warning to prevent it, and, in an urgent case where that act may harm a person’s life or body or cause serious damage to property, may restrain that act” (Police Duties Act, Article 6).
2) Legal character — administrative immediate compulsion
The part of the above provision concerning a police officer’s restraint is a basis provision for administrative immediate compulsion for crime prevention—that is, a power-exercising factual act in which, in a situation where there is a need to remove an imminent police obstacle right before one’s eyes and there is no time to order a duty, or it is hard to achieve the purpose by the method of ordering a duty, the police directly exercise force without presupposing non-performance of a duty, and realize the state required for police purposes (Supreme Court, Dec. 13, 2018, 2016do19417; Seoul Central District Court, July 18, 2022, 2021godan6839).
3) Requirements for a lawful restraint measure
Because administrative immediate compulsion is, by its nature, exceptionally permitted within the unavoidable limit for achieving an administrative purpose, the requirements for the invocation and exercise of a police officer’s restraint measure under Article 6 of the Police Duties Act must also be interpreted carefully and strictly, so that such a measure is exercised only within the unavoidable minimum limit (Supreme Court, Nov. 13, 2008, 2007do9794).
Concretely, for a lawful restraint measure, all three of the following requirements must be satisfied (Supreme Court, Dec. 13, 2018, 2016do19417; Supreme Court, Mar. 15, 2017, 2013do2168; Incheon District Court, June 4, 2024, 2023no500; Busan District Court, July 9, 2024, 2023no3546).
| Requirement | Content |
|---|---|
| (1) Imminence of the criminal act right before one’s eyes | A situation in which it can be objectively recognized that an act subject to criminal punishment is just about to be committed right before one’s eyes |
| (2) Imminent concern of harm or damage | A situation in which, if the act is not restrained at once, there is a concern that it will soon harm a person’s life or body or cause serious damage to property |
| (3) Pressing necessity | A pressing situation in which the above result cannot be prevented except by the method of direct restraint |
4) The standard of judgment — exclusion of an after-the-fact objective standard
Whether a police officer’s restraint measure is lawful must be judged on the basis of the concrete situation at the time of the restraint measure, and is not to be judged afterward from a purely objective standard (Supreme Court, Dec. 13, 2018, 2016do19417; Seoul Southern District Court, Nov. 10, 2022, 2022no282).
5) The temporal scope of the restraint measure
A police officer’s restraint may be carried out not only before the commencement of execution of the criminal act, for crime prevention, but also, naturally, thereafter while the crime is continuing, for its suppression (Supreme Court, Sept. 30, 2021, 2014do17900, 2013no277 (consolidated)).
By contrast, restraining the act of departing or moving to participate in an unlawful assembly or demonstration in another area not temporally and spatially proximate clearly exceeds the scope of a police officer’s restraint and cannot be permitted (Supreme Court, Nov. 13, 2008, 2007do9794).
6) An unlawful restraint measure and the offense of obstruction of official duties
A restraint measure that does not meet the requirements of Article 6 of the Police Duties Act constitutes an unlawful execution of duties, and the “lawful execution of duties” that is an element of the offense of obstruction of official duties is lacking. The offense is established only where the public official’s execution of duties is lawful, and lawful execution of duties here refers to a case in which the act not only falls within the official’s abstract authority but also meets the legal requirements and methods for the concrete execution of duties (Supreme Court, May 26, 2011, 2011do3682; Incheon District Court, Bucheon Branch, Jan. 11, 2023, 2022godan1440).
F. Use of police equipment (Article 10-2)
A police officer may, where there is a reasonable ground recognized as necessary to perform the following duties, use police equipment (handcuffs, ropes, batons, shields, etc.) within the necessary limit, judging the situation reasonably (Police Duties Act, Article 10-2; Jeju District Court, Feb. 6, 2024, 2023no864):
- Arrest of a flagrant offender or of an offender who has committed an offense punishable by death, life imprisonment, or imprisonment for a maximum of 3 years or more, or prevention of escape;
- Defense and protection of one’s own or another’s life or body;
- Restraint of resistance to the execution of official duties.
G. Use of weapons (Article 10-4, former Article 11)
A police officer’s use of weapons is permitted only under strict requirements. The precedents recognize the State’s liability for damages where a police officer’s firing of a pistol exceeded the permitted scope of firearm use prescribed by the Police Duties Act (Supreme Court, July 27, 1993, 93da9163; Supreme Court, Nov. 8, 1994, 94da25896).
H. Use of police body-worn recording devices (Article 10-5)
A police officer may use a police body-worn recording device in the following cases (Police Duties Act, Article 10-5):
- Where, under Article 6, urgently preventing and restraining a criminal act that may harm a person’s life or body or cause serious damage to property;
- In other cases prescribed by Presidential Decree, etc.
I. Compensation for loss (Article 11-2)
The Police Duties Act provides that the State shall compensate not only for property loss arising in the course of a police officer’s lawful execution of duties but also for loss to life or body. Those entitled to claim compensation for loss are persons not responsible for the cause of the loss, or persons responsible for the cause of the loss but who suffered loss exceeding their responsibility.
2. The Police Investigation Rules
A. Purpose
The Police Investigation Rules have as their purpose to provide the matters necessary for a judicial police official who is a police officer to conduct an investigation in accordance with investigation-related statutes such as the Criminal Procedure Act and the Regulations on Mutual Cooperation Between Prosecutors and Judicial Police Officers and on General Investigation Standards (Police Investigation Rules, Article 1).
B. Pre-booking inquiry (Article 19)
Article 19 of the Police Investigation Rules provides for pre-booking inquiry. The detailed matters necessary for the classification, acceptance, conduct of the inquiry, and record management of pre-booking inquiry cases are determined by the Commissioner General of the National Police Agency (Police Investigation Rules, Article 19(3)).
C. Duty to give notice of voluntary accompaniment (Article 20)
Article 35 of the Police Investigation Rules provides that, when a judicial police officer requests voluntary accompaniment, he must inform the other party that he may refuse the accompaniment, and that even where he accompanies, he may freely leave the accompaniment process or depart the place of accompaniment at any time (Police Investigation Rules, Article 35).
D. Verification protocol (Article 70)
Article 70 of the Police Investigation Rules provides that the verification protocol under Article 43 of the Investigation Standards follows the form in Annexed Form No. 17 (Police Investigation Rules, Article 70).
E. Personal protection (Article 80)
Article 80 of the Police Investigation Rules provides for the types of measures necessary for personal protection under Article 15(2) of the Investigation Standards as follows (Police Investigation Rules, Article 80):
- Protection at a specific facility such as a victim-protection facility;
- Personal escort, and accompaniment when attending or returning from an investigative agency or court;
- Provision of temporary lodging;
- Protection of the residence, such as strengthened patrol of the residential area and installation of closed-circuit television;
- Other measures recognized as necessary for personal safety, such as building an emergency-contact network.
The above provision applies mutatis mutandis where a crime reporter or other reference witness is at risk of retaliation in connection with a criminal investigation (Police Investigation Rules, Article 80(2)).
F. Confirmation of notice of a relief application (Article 77)
Article 77 of the Police Investigation Rules provides that the notice-confirmation document under Article 47 of the Investigation Standards follows the form in Annexed Form No. 89 (Police Investigation Rules, Article 77).
G. The duty to prepare a seizure protocol, and related precedent
Where a judicial police officer seizes voluntarily submitted evidence, he is required to prepare a seizure protocol concretely stating the circumstances of the seizure and the like. This is to have the judicial police officer record the course of the seizure procedure, so as to review and control the lawfulness of the seizure procedure afterward. Even where, under former Article 119(3) of the Criminal Investigation Rules, the purport of the seizure may be stated in a suspect-interrogation protocol or the like in lieu of a seizure protocol, there is no difference in the function of reviewing and controlling the lawfulness of the seizure procedure (Supreme Court, June 1, 2023, 2020do2550).
3. State Liability for Violations of the Police Duties Act
Where one suffers harm from a police officer’s execution of duties in violation of the Police Duties Act, State liability for damages may be established. The precedents hold that if an investigative agency, in conducting a criminal investigation, violated the statutory or reason-based limits it ought to observe, this amounts to a violation of statutes, and that if it is recognized that the investigative agency, intentionally or negligently, violated its duties and thereby substantively infringed the suspect’s fundamental rights in the investigation process, the State must compensate for the harm the suspect thereby suffered (Daegu District Court, May 15, 2025, 2024na313406).
4. Summary
| Provision | Main content | Key precedent |
|---|---|---|
| Police Duties Act, Article 1 | Principle of minimum-extent exercise of authority | Supreme Court 2016do19417 |
| Police Duties Act, Article 3 | Stop-and-question / voluntary accompaniment; prohibition on detention exceeding 6 hours | — |
| Police Duties Act, Article 6 | Crime prevention / restraint (immediate compulsion), strict requirements | Supreme Court 2007do9794; Supreme Court 2013do2168 |
| Police Duties Act, Article 10-2 | Requirements for use of police equipment | — |
| Police Duties Act, Article 11-2 | Compensation for loss from lawful execution of duties | — |
| Police Investigation Rules, Article 20 | Duty to give notice of the right to refuse / right to depart in voluntary accompaniment | — |
| Police Investigation Rules, Article 80 | Types of personal-protection measures | — |
As above, the Police Duties Act and the Police Investigation Rules provide for the authority and limits of a police officer’s performance of duties; in particular, the restraint measure of Article 6 of the Police Duties Act must have its requirements interpreted strictly, and a restraint measure that does not meet the requirements is an unlawful execution of duties and a basis for denying the establishment of the offense of obstruction of official duties (Supreme Court, May 26, 2011, 2011do3682; Supreme Court, Nov. 13, 2008, 2007do9794).
A Suspect’s Right to Depart During Voluntary Accompaniment: Whether Absolute, and the Possibility of Restriction
1. The Right to Depart Is in Principle Absolute
Because voluntary accompaniment has the other party’s consent or assent as its requirement, a person who receives a request for voluntary accompaniment from a police officer may not only refuse it but also has the freedom to depart from the police office at any time after voluntary accompaniment (Supreme Court, Aug. 22, 1997, 97do1240; Police Duties Act, Article 3(2)).
This principle is also expressly codified in the Investigation Standards. When a prosecutor or judicial police officer requests voluntary accompaniment, he must inform the other party that he may refuse the accompaniment, and that even where he accompanies, he may freely leave the accompaniment process or depart the place of accompaniment at any time (Regulations on Mutual Cooperation Between Prosecutors and Judicial Police Officers and on General Investigation Standards, Article 20; Police Investigation Rules, Article 20).
Moreover, the fact that Article 3(6) of the Police Duties Act provides that, in the case of voluntary accompaniment, the person may not be kept at the police office exceeding 6 hours does not mean that provision permits a voluntarily accompanied person to be confined at the police office for 6 hours (Supreme Court, Aug. 22, 1997, 97do1240; Police Duties Act, Article 3(6)).
2. The Legal Effect Where the Right to Depart Is Infringed
A voluntary accompaniment in which the right to depart is not substantively guaranteed amounts to an unlawful compulsory taking (an unlawful arrest), and evidence collected in that state is denied admissibility as unlawfully collected evidence.
The precedents present the following as the standard for judging the lawfulness of voluntary accompaniment.
Its lawfulness is recognized only where it is clearly proved by objective circumstances that the accompaniment to the investigative office or the like was made solely by the suspect’s voluntary will—such as where it is recognized that the investigator informed the suspect before the accompaniment that he could refuse it, or that the accompanied suspect could freely leave the accompaniment process or depart from the place of accompaniment at any time. (Supreme Court, May 14, 2020, 2020do398; Daegu District Court, Sept. 29, 2009, 2009godan1743)
The judgment of the voluntariness of voluntary accompaniment is made by reference to the objective situation, taking together various circumstances—the time and place of the accompaniment, the method of the accompaniment and whether there was an intent to refuse it, and the method of investigation after the accompaniment and whether there was an intent to depart (Supreme Court, Nov. 23, 1993, 93da35155).
3. Concrete Cases Where Substantive Restriction of the Right to Depart Was at Issue
A. Blocking departure by coercing the signing of a voluntary-accompaniment consent form — unlawful
Where a police officer, after voluntary accompaniment, demanded that the suspect sign a voluntary-accompaniment consent form and blocked his departure, the court judged this to be an unlawful execution of duties. It held that, voluntary accompaniment having the other party’s consent or assent as its requirement, there is freedom to depart from the police office at any time after voluntary accompaniment, and the officers’ act of blocking the suspect’s departure while demanding the signing of the consent form was hard to regard as a lawful execution of duties (Changwon District Court, Oct. 15, 2024, 2023no1682).
B. Voluntary accompaniment carried out without notice — unlawful
Where a police officer accompanied a suspect by exercising physical force such as grabbing his arm, without giving notice of the right to refuse voluntary accompaniment and the freedom to depart, the court regarded this as an unlawful voluntary accompaniment and denied the admissibility of evidence collected in the course of it (Changwon District Court, May 3, 2024, 2023no2594; Gwangju District Court, Feb. 6, 2024, 2023no446).
C. Where substantive voluntariness was recognized even without notice — lawful
By contrast, even where the investigator did not expressly give notice of the freedom to depart, where it is clearly proved objectively—taking together the overall course and situation of the accompaniment—that it was substantively an accompaniment by the suspect’s voluntary will, it is recognized as a lawful voluntary accompaniment. The court held that “giving notice that one may refuse the accompaniment or leave the accompaniment process is no more than one element in judging the lawfulness of a voluntary investigation; there is no basis in positive law for regarding the investigative agency as having a duty to give notice of the right to refuse a voluntary investigation each time it attempts one, or for regarding a voluntary investigation as permitted only where the suspect expressly manifests consent” (Suwon District Court, July 3, 2024, 2024no1193; Daegu District Court, May 15, 2025, 2025no538; Daegu District Court, Uiseong Branch, July 4, 2024, 2024gojeong18).
4. The Possibility of Substantive Restriction of the Right to Depart by Investigation Stage or Type of Offense
A. Transition from voluntary accompaniment to arrest of a flagrant offender
Even if a suspect manifests an intent to depart during voluntary accompaniment, where the requirements for arrest of a flagrant offender (punishability; present nature and temporal proximity; clarity; necessity of arrest) are met at that point, the officer may arrest him as a flagrant offender. In this case, the freedom to depart is restricted by the lawful arrest (Criminal Procedure Act, Article 212). That said, because a request for voluntary accompaniment and its refusal are not preliminary requirements for arrest of a flagrant offender, the arrest cannot be concluded to be unlawful merely on the ground that the method of voluntary accompaniment was not taken first (Uijeongbu District Court, Goyang Branch, Aug. 23, 2023, 2023godan248).
Conversely, where one proceeds straight to arrest of a flagrant offender without first requesting voluntary accompaniment, it may become an unlawful arrest in violation of the principle of proportionality. The court held that “even if there was a need to accompany the defendant to the substation, it would have been appropriate to first request voluntary accompaniment of the defendant and, if he did not comply, to make a flagrant-offender arrest; arresting him as a flagrant offender straight away without even trying to request voluntary accompaniment is unlawful” (Daejeon District Court, July 14, 2022, 2021gojeong422; Daejeon District Court, May 10, 2024, 2022no2071).
B. The particularity of breath-test refusal cases
In drunk-driving enforcement cases, a breath-test request is often made after voluntary accompaniment. The court held that even where an officer informs the suspect that refusing a breath test establishes the offense of violating the Road Traffic Act (breath-test refusal), and the suspect felt somewhat compelled thereby, this is an unavoidable minimum accompanying the breath-test procedure set by the Road Traffic Act and is lawful, and cannot be regarded as reaching an unlawful compulsory investigation on that ground alone (Uijeongbu District Court, Apr. 18, 2024, 2022no2227). That is, giving notice of the breath-test obligation itself does not unlawfully restrict the freedom to depart.
C. Where the requirements for a protective measure are met
Where the requirements for a protective measure under Article 4(1)1 of the Police Duties Act (a person who has lost normal judgment or volition due to mental confusion or heavy intoxication) are met, taking the suspect to the police office against his will is permitted. That said, even in this case, the act of taking the suspect—substantively for the purpose of criminal investigation—despite the requirements for a protective measure not being met amounts to an unlawful arrest (Chuncheon District Court, Jan. 18, 2022, 2021gojeong86).
5. Summary
| Situation | Right to depart | Basis |
|---|---|---|
| The principle during voluntary accompaniment | Absolutely guaranteed | Supreme Court 97do1240; Police Duties Act, Article 3(2) |
| Blocking departure by coercing the signing of a consent form | Unlawful (infringement of the right to depart) | Changwon Dist. Ct. 2023no1682 |
| Substantive voluntariness recognized even without notice | Lawful (right to depart substantively guaranteed) | Suwon Dist. Ct. 2024no1193, etc. |
| Where requirements for arrest of a flagrant offender are met | May be lawfully restricted | Criminal Procedure Act, Article 212 |
| Going straight to flagrant-offender arrest without voluntary accompaniment | May be unlawful for violating proportionality | Daejeon Dist. Ct. 2021gojeong422, etc. |
| Where requirements for a protective measure are met | May be lawfully restricted | Police Duties Act, Article 4(1) |
| Compulsory taking with the requirements for a protective measure unmet | Unlawful | Chuncheon Dist. Ct. 2021gojeong86 |
In short, a suspect’s right to depart during voluntary accompaniment is in principle absolutely guaranteed, and is not itself restricted according to the investigation stage or type of offense. Bodily freedom may be restricted only where a separate legal basis is in place—such as the requirements for arrest of a flagrant offender being met, or the requirements for a lawful protective measure being met—and the act of blocking departure during voluntary accompaniment without such a legal basis amounts to an unlawful execution of duties (Police Duties Act, Article 3(2), (6), (7)).
Thanks for reading!
KLAWGURU.COM 
Leave a comment