CONTENTS
- 1. Unlawful confinement | Definition
- - Elements of the offense
- 2. Unlawful confinement | Types
- - Confinement and confinement of a lineal ascendant
- - Aggravated confinement and aggravated confinement of a lineal ascendant
- - Special confinement
- - Confinement resulting in death or injury
- 3. Unlawful confinement | Punishment standards
- - Level of punishment
- - Sentencing standards
- - Levels of punishment seen through case precedents
- 4. Unlawful confinement | If you are a suspect?
- - Investigation procedure
- - Trial procedure
- 5. Unlawful confinement | If you are a victim?
- - Securing objective evidence
- - Proceeding with the legal response
- 6. Unlawful confinement | If it is difficult to respond on your own?
1. Unlawful confinement | Definition
Unlawful confinement is a crime that infringes on a person's freedom of movement, and it applies when a person is made unable, or finds it very difficult, to leave a particular place.
Elements of the offense
The factor that creates a state of confinement can arise not only through physical, tangible means but also through psychological, intangible means.
The essence of confinement lies in restricting a person's freedom of movement, and there is no limit on the means or methods involved, so whether tangible or intangible, all such conduct may constitute unlawful confinement.
Even if the freedom of movement is not completely taken away, the fact that some degree of freedom of living was permitted within the confined space does not affect whether unlawful confinement is established.
2. Unlawful confinement | Types
Unlawful confinement is classified into unlawful confinement, confinement of a lineal ascendant, aggravated confinement, special confinement, and confinement resulting in death or injury.
Confinement and confinement of a lineal ascendant
Unlawful confinement is the act of detaining another person in a particular place or preventing them from leaving freely, which restricts their physical freedom.
Confinement of a lineal ascendant, by contrast, is an aggravated offense that applies when the person confined is a lineal ascendant of the offender or of the offender's spouse.
Aggravated confinement and aggravated confinement of a lineal ascendant
Aggravated confinement and aggravated confinement of a lineal ascendant are serious crimes in which cruel acts are inflicted on a person who is in a state of confinement.
Aggravated confinement applies when a person is arrested or confined and then subjected to cruel acts, and aggravated confinement of a lineal ascendant applies when the person subjected to such conduct is a lineal ascendant of the offender or of the offender's spouse.
Special confinement
Special confinement is a serious crime that applies to the act of arresting or confining a person while displaying the collective force of a group or a crowd, or while carrying a dangerous object.
Because it intimidates the victim and carries the possibility of physical harm, it is punished more severely than ordinary unlawful confinement.
Confinement resulting in death or injury
Confinement resulting in death or injury is a serious crime that applies when the offender injures the victim or causes the victim's death while arresting or confining them.
3. Unlawful confinement | Punishment standards
A person who commits unlawful confinement may face not only imprisonment with labor or a fine but also a concurrent suspension of qualifications for up to 10 years.
| Criminal Act Article 282 | For unlawful confinement, a suspension of qualifications for up to 10 years may be imposed concurrently. |
Level of punishment
Level of punishment for unlawful confinement and confinement of a lineal ascendant
| Criminal Act Article 276 | ① Confinement : imprisonment for up to 5 years or a fine of up to 7 million won |
| ② Confinement of a lineal ascendant : imprisonment for up to 10 years or a fine of up to 15 million won |
Level of punishment for aggravated confinement and aggravated confinement of a lineal ascendant
| Criminal Act Article 277 | ① Aggravated confinement : imprisonment for up to 7 years |
| ② Aggravated confinement of a lineal ascendant : ② imprisonment for a definite term of up to 2 years |
Level of punishment for special confinement
| Criminal Act Article 278 | Aggravated punishment by up to one-half of the punishment prescribed for the offense |
Level of punishment for confinement resulting in death or injury
| Criminal Act Article 281 | ① Where it results in injury, imprisonment for a definite term of at least 1 year; where it results in death, imprisonment for a definite term of at least 3 years |
② Where it results in injury to a lineal ascendant of the offender or of the offender's spouse, imprisonment for a definite term of at least 2 years Where it results in death, imprisonment for a definite term of at least 5 years |
Sentencing standards
▷ Where the degree of confinement was minor
▷ Where there are circumstances particularly worthy of consideration regarding participation in the offense
▷ A motive for the offense worthy of consideration
▷ Where the offender voluntarily released the victim in a safe place
▷ Mental and physical weakness
▷ Voluntary surrender or whistleblowing
▷ The victim's wish not to punish or recovery of damages (including a deposit in court)
▷ Passive participation
▷ Sincere remorse
▷ No record of prior criminal punishment
Levels of punishment seen through case precedents
Changwon District Court, Judgment of February 1, 2023, 2022 Godan 1340
As a result,
In the end, the defendant received a suspended sentence for this offense.
Ulsan District Court, Judgment of April 23, 2021, 2021 Gohap 8
When the victim continued to resist, the defendant held the steering wheel with one hand and struck the victim's face and head several times with the other hand, causing the victim to hit the window.
As a result, the victim was confined for about 2 hours and suffered contusions requiring 2 weeks of treatment, so
In the end, the defendant received a suspended sentence for this offense.
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4. Unlawful confinement | If you are a suspect?
Because unlawful confinement is not a crime that requires a complaint in order to prosecute, an investigation proceeds regardless of whether the victim files a complaint.
For this reason, it is important to grasp the facts accurately from the early stage of the investigation and to give statements consistently.
Investigation procedure
If you intend to deny the charges or seek a reduced sentence during the investigation, you should prepare careful and clear statements.
Points to be careful about when responding
▷ Securing as much evidence as possible, such as CCTV footage, witness statements, and call records related to the case
▷ During the police investigation and court appearances, staying calm and giving clear statements based on the facts
▷ Not changing your statements carelessly or making false statements during the investigation, and maintaining a consistent position
Trial procedure
At trial, the facts are determined by considering a range of materials together, such as the defendant's statements, the submitted evidence, and the victim's statements.
During the trial, you can state your position clearly through the opportunity to plead, and you can submit evidence or request witnesses.
Because your demeanor in court and the content of your statements may affect the judgment, it is important to respond calmly and carefully.
Points to keep in mind during the trial procedure
▷ Not making statements in court that differ from the facts
▷ Organizing evidence and witnesses systematically in advance so that they can be prepared and submitted
▷ Checking the trial schedule and procedure thoroughly so that there is no delay or missed attendance
▷ Expressing yourself calmly without responding emotionally during the trial
5. Unlawful confinement | If you are a victim?
A victim of unlawful confinement should first ensure their safety, then carefully collect evidence related to the case and promptly report it to the police in order to begin the legal procedures.
Securing objective evidence
In order to prove the facts during the investigation and trial of unlawful confinement, it is important to prepare all available objective evidence thoroughly.
▷ Collecting mobile phone call records and text message records
▷ Securing statements from witnesses to the incident
▷ Preparing related materials, such as photographs of the scene and photographs of the injured areas
Proceeding with the legal response
In the criminal complaint, you should describe in detail the time and place of the incident, the specific circumstances, and the perpetrator's conduct, and it helps to submit the secured evidence together with it.
When the legal procedures are under way, it is important to cooperate actively with the investigation and trial and to take part in good faith.
To recover from the harm, you may also file a claim for damages through a civil lawsuit.
▷ Promptly submitting the evidence needed during the investigation and trial
▷ Managing evidence thoroughly to prevent its damage or loss
▷ Preparing carefully to secure witnesses and to reinforce additional evidence
6. Unlawful confinement | If it is difficult to respond on your own?
Unlawful confinement is a serious crime that restricts the victim's physical freedom, and if the charges are proven, a heavy criminal penalty such as imprisonment may be imposed.
Even where the alleged facts are unclear or stem from a misunderstanding, an inadequate response may lead to an unfavorable outcome, so it is important to respond carefully from the early stage.
This firm accurately analyzes the type of case using data from a wide range of criminal matters and provides tailored solutions.
Depending on the characteristics of the case, criminal defense attorneys form a task force of anywhere from 1 to 20 members and provide tailored legal services throughout the entire process, including systematic evidence collection, the development of a defense strategy, and support from the investigation stage through trial.
If you are involved in an unlawful confinement matter and need a defense against punishment or representation in filing a complaint, please feel free to seek the assistance of a criminal defense attorney at any time.
