The Flow of Criminal Procedure from Arrest to Conviction in South Korea
Below, the procedure from the point a suspect is arrested to the point of receiving a conviction at a criminal trial is explained in chronological order.
1. The Investigation Stage
A. Arrest
A compulsory measure that physically detains a suspect for a short period, broadly of three types.
| Type | Main requirements |
|---|---|
| Arrest by warrant | Appropriateness of the criminal suspicion + non-compliance, or concern of non-compliance, with a request to appear (Criminal Procedure Act, Article 200-2(1)) |
| Emergency arrest | An offense punishable by a maximum of 3 years or more + concern of destroying evidence or fleeing + no time to obtain a warrant (Criminal Procedure Act, Article 200-3(1)) |
| Arrest of a flagrant offender | The present nature and clarity of the offense + necessity of arrest (concern of fleeing or destroying evidence) (Criminal Procedure Act, Article 212) |
Upon arrest, the investigative agency must inform the suspect of the gist of the criminal facts, the reason for the arrest, the right to appoint counsel, and the like (the Miranda rule) (Criminal Procedure Act, Article 200-5).
B. Within 48 hours of arrest — request a detention warrant or release
To continue detaining an arrested suspect, a detention warrant must be requested from the judge of the competent district court within 48 hours of the arrest. If a detention warrant is not requested within this period, the suspect must be released immediately (Criminal Procedure Act, Article 200-2(5)).
C. Review of the legality of arrest/detention (optional)
An arrested or detained suspect (or his counsel, legal representative, spouse, etc.) may request the competent court to review the legality of the arrest or detention (Criminal Procedure Act, Article 214-2(1)). This is a right guaranteed by Article 12(6) of the Constitution, a procedure by which one may request the court to review whether the arrest or detention itself is lawful (Constitutional Court, Mar. 25, 2004, 2002heonba104).
The court interrogates the suspect within 48 hours of receiving the request, and orders release if the request has merit (Criminal Procedure Act, Article 214-2(4)). However, release on condition of paying a deposit is permitted only for a “detained suspect,” and is not permitted for an arrested suspect (Supreme Court, Aug. 27, 1997, 97mo21).
D. Issuance of the detention warrant and detention
The district-court judge issues a detention warrant where there are (1) the appropriateness of the criminal suspicion and (2) one or more grounds for detention among having no fixed residence, concern of destroying evidence, and concern of fleeing (Criminal Procedure Act, Article 201(1), Article 70(1)). Before the detention warrant is issued, a pre-detention interrogation of the suspect (substantive warrant review) procedure is conducted (Criminal Procedure Act, Article 201-2).
E. Conducting the investigation during the detention period
| Stage | Period |
|---|---|
| Detention by a judicial police officer | Transfer to the prosecutor within 10 days (Criminal Procedure Act, Article 202) |
| Detention by a prosecutor | Institute prosecution within 10 days (Criminal Procedure Act, Article 203) |
| Extension of the detention period | On the prosecutor’s application, extendable once only, within 10 days (Criminal Procedure Act, Article 205(1)) |
That is, the detention period at the investigation stage is in principle a maximum of 30 days (10 days for the judicial police officer + 10 days for the prosecutor + 10 days’ extension).
During this period, the prosecutor investigates the suspect and collects evidence to decide whether to prosecute.
2. The Prosecution (Indictment) Stage
A. The prosecutor’s decision to prosecute
After concluding the investigation, the prosecutor judges the possibility of criminal punishment of the suspect and makes a prosecution (institution of prosecution) or a non-prosecution disposition (Criminal Procedure Act, Article 246, Article 247). The prosecutor may decline to prosecute by taking into account the sentencing matters of Article 51 of the Criminal Act (the principle of discretionary prosecution).
B. Submission of the indictment
Where the prosecutor prosecutes, an indictment is submitted to the competent court (Criminal Procedure Act, Article 254(1)). The indictment must state the matters identifying the defendant, the name of the offense, the charged facts, and the applicable provisions; and the charged facts must specify the date, place, and method of the offense so that the facts can be identified (Criminal Procedure Act, Article 254(3), (4)).
Once prosecution is instituted, the suspect acquires the status of a defendant.
3. The Trial Stage
A. The pre-trial preparation procedure
The court may conduct a pre-trial preparation procedure for the efficient conduct of the trial. At this stage, it is desirable to check for problems in the prosecution procedure—such as defects in the manner of stating the indictment (e.g., a violation of the principle that the indictment alone is submitted) (Supreme Court, Oct. 22, 2009, 2009do7436, en banc).
B. The first trial date
The first trial date must have a grace period of 5 days or more after service of the summons (Criminal Procedure Act, Article 269(1)).
C. The order of the trial date
The trial date proceeds in the following three stages.
1) The opening procedure
- The presiding judge informs the defendant of the right to remain silent (Criminal Procedure Act, Article 283-2).
- The prosecutor reads out the charged facts, the name of the offense, and the applicable provisions.
- The defendant states whether he admits the charged facts.
2) The fact-finding examination
- The prosecutor and counsel apply for evidence, and the court conducts the examination of evidence.
- Witness examination, defendant examination, and the like take place.
- A finding of guilt must be by evidence that makes the judge have a conviction to the degree that there is no room for reasonable doubt; if there is no such evidence, the judgment is made in the defendant’s favor (the principle of the presumption of innocence) (Busan District Court, July 7, 2023, 2022no3615).
- Where a defendant’s confession is the only evidence unfavorable to him, it cannot be used as evidence of guilt (Criminal Procedure Act, Article 310).
3) Pronouncement of judgment
- After the prosecutor’s sentencing recommendation, the judgment is pronounced through counsel’s closing argument and the defendant’s final statement.
- Once a conviction is pronounced, the defendant may contest it by way of appeal to the appellate court (second instance) or final appeal (third instance).
4. Summary of the Overall Flow
Arrest (by warrant / emergency / flagrant offender)
▼ within 48 hours
Request a detention warrant → pre-detention interrogation → issuance of the detention warrant
→ (if needed) a review of the legality of arrest/detention may be requested
▼
Investigation conducted (a maximum of 30 days)
▼
The prosecutor’s decision to prosecute → submission of the indictment (suspect → defendant)
▼
Pre-trial preparation procedure
▼
Trial date: opening procedure → fact-finding examination (examination of evidence) → pronouncement of judgment
▼
Conviction becomes final → execution of the sentence
The above is the basic flow of criminal procedure from arrest to conviction as of July 2026. (May change later this year.)
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