CONTENTS
- 1. Voluntary Surrender Under the Criminal Act, the Detailed Circumstances
- - Voluntary Surrender Under the Criminal Act, the Relevant Statutes and Precedents
- 2. Voluntary Surrender Under the Criminal Act, the Court's Determination
- 3. Voluntary Surrender Under the Criminal Act, Daeryun's Strategy
1. Voluntary Surrender Under the Criminal Act, the Detailed Circumstances
The party to the dispute concerning voluntary surrender under the Criminal Act was a defendant who had been referred to criminal trial for drunk driving.
After drinking, the defendant called a designated driver and personally drove to the spot a short distance away where the designated driver was waiting.
However, when the designated driver discovered damage to the front wheel of the defendant's vehicle and refused to drive, the defendant called the police in order to determine the cause of the damage.
During the investigation, the police detected the defendant's drunk driving.
At the time, the defendant's blood alcohol concentration was a high 0.171%, and because the defendant had collided with the exterior wall of a parking lot while driving, a heavy punishment was anticipated.
In response, the defendant retained an attorney and proceeded to trial.
The attorney argued that, because the defendant had personally reported the matter to the police after the incident occurred and, when an officer asked whether the defendant had been drunk driving, had stated, “I do not remember well, but it seems so,” this constituted a voluntary surrender, a statutory ground for mitigation.
Voluntary Surrender Under the Criminal Act, the Relevant Statutes and Precedents
🔗Punishment for Drunk Driving may be mitigated or remitted if the offender makes a voluntary surrender. This is provided for in the Criminal Act.
▣ Article 52 of the Criminal Act
(1) Where a person voluntarily surrenders to an investigative agency after committing a crime, the sentence may be mitigated or remitted.
▣ Relevant Precedent
The “voluntary surrender” referred to in Article 52(1) of the Criminal Act is a declaration of intent by which an offender voluntarily reports their own offense to an agency responsible for investigation and submits to its disposition. Accordingly, stating the facts of an offense in response to an investigative agency's official questioning or investigation is merely a confession and does not amount to a voluntary surrender. Beyond that, because a voluntary surrender is established by the offender making a declaration of intent to an investigative agency, an internal intention alone is insufficient, and it can be recognized only when it is expressed externally.
- Supreme Court, Decision of December 22, 2011, 2011 Do 12041
2. Voluntary Surrender Under the Criminal Act, the Court's Determination
Regarding voluntary surrender under the Criminal Act, the defendant's attorney argued that the defendant's statement of the facts of the offense during the police investigation constituted a voluntary surrender and thus a ground for mitigation. The court, however, did not accept this argument.
First, the court explained that the person who reported the matter to the police after the incident was not the defendant but the defendant's girlfriend, who acted on the defendant's request to report,
and that, because the reason for the report was to handle the accident that had caused the designated driver to refuse to drive on account of the damage to the front wheel of the defendant's vehicle, it did not constitute a voluntary report.
Above all, the court determined that, considering that the defendant had stated that he had not been driving and had done nothing wrong during the traffic-accident investigation conducted by the officers dispatched in response to the report, and that he admitted to this drunk-driving offense only in the course of the subsequent police investigation, the conduct did not constitute a voluntary surrender.
In the end, the defendant was sentenced to a fine of 5 million won.
3. Voluntary Surrender Under the Criminal Act, Daeryun's Strategy
This analysis examined a district court judgment holding that, with respect to voluntary surrender under the Criminal Act, stating the facts of an offense during a police investigation is merely a confession and is not recognized as a voluntary surrender.
Drunk driving is strictly punished under the Road Traffic Act.
If, before being questioned by the police on a drunk-driving charge, a person voluntarily reports their own offense, this voluntary surrender may qualify as a statutory ground for mitigation and may lead to a reduced sentence.
However, a voluntary surrender does not automatically result in a reduced sentence.
The Supreme Court has held that “in the case of mandatory mitigation, where the existence of a ground for mitigation is recognized, statutory mitigation under Article 55(1) of the Criminal Act must be applied; by contrast, in the case of discretionary mitigation, even where the existence of a ground for mitigation is recognized, the judge may or may not apply statutory mitigation under Article 55(1) of the Criminal Act.” (See Supreme Court, Decision of January 21, 2021, 2018 Do 5475, en banc.)
Therefore, if you face a drunk-driving charge, it may be advantageous to promptly retain an attorney experienced in such matters and proceed with the case together.
Daeryun Law Firm LLP operates the 🔗Drunk Driving and Traffic Accident Response Group and assists clients who have been referred to criminal trial for drunk driving in seeking the greatest possible reduction of their sentence.
If you need assistance, you are welcome to visit Daeryun at any time.
