Detention and Arrest Procedure (Including Warrant Hearings)

Which step are you at?

Select your current step and the content for that step will appear below.

1. 1Arrest and Application for Detention Warrant
2. 2Prosecutor's Request for Warrant
3. 3Hearing to Examine the Warrant
4. 4Issuance / Dismissal
5. 5Investigation in Detention
6. 6Request for Review of the Legality of Detention
7. 7Request for Bail (After Indictment)
8. 8Renewal of Detention Period and Judgment

• Basic step
• Additional action / option
• Rejection / objection
• End of procedure

Time required

Detention warrant requested within 48 hours after arrest, warrant hearing by the day after the request, detention during investigation up to 30 days

Cost

Bail money and the deposit for a review of legality are set by the court for each case, and hiring a defense lawyer costs a retainer fee

Procedure guide

Read from start to finish in order. Red text marks deadlines set by law.

1. 1

   The police secure the suspect's person (custody) through an arrest warrant, emergency arrest or arrest in the act, or, while the suspect has appeared voluntarily, apply to a prosecutor of the Public Prosecution Office (formerly the Prosecutors' Office) for a detention warrant. If someone is arrested, tell the family right away and hire a defense lawyer. This is because the warrant is requested within 48 hours after the arrest and the examination is held by the day after the request (§200-2(5), §201-2(1)), so the family has little time to gather materials and the defense lawyer has little time to prepare arguments.

2. 2

   The prosecutor of the Public Prosecution Office reviews the risk of flight, the risk of destroying evidence, how serious the crime is and so on, and requests a detention warrant from the court. If the suspect was arrested, the request must be made within 48 hours after the arrest. If no request is made, the suspect is released right away; if it is requested, the hearing follows immediately.

3. 3

   If the suspect was arrested, the hearing to examine the warrant (a procedure in which a judge calls in and questions the suspect directly before detention) is held by the day after the request (Criminal Procedure Act §201-2(1)). The judge questions the suspect directly. The defense lawyer submits a written opinion along with materials on the place of residence, family and settlement, and argues that there are no grounds for detention. The judge decides on detention by looking at whether there is a risk of flight or destruction of evidence (§70(1)).

4. 4

   The judge assesses the grounds for and necessity of detention and either issues or dismisses (does not accept) the warrant. If it is dismissed, the suspect is released and investigated without detention.

5. 5

   If the warrant is issued, the investigation continues while the suspect is held in a detention center. The detention period is 10 days with the police and 10 days with the prosecutor of the Public Prosecution Office (formerly the Prosecutors' Office). At the prosecutor stage, it can be extended 1 time by 10 days. Because the period is short, the investigation moves quickly, so consider a review of the legality of detention during this time as well.

6. 6

   If you find the detention unlawful or unjust, request a review of the legality of detention (a request to review again whether the detention is lawful) from the court before indictment. You may also be released on condition of paying a deposit. After indictment, the procedure changes to bail, so a review of legality should be considered before indictment.

7. 7

   After indictment, request bail (release on conditions such as bail money). The court may grant it with conditions such as paying bail money or restricting the place of residence. Instead of bail money, the court may allow securities or a guarantee certificate submitted by a person other than the defendant (such as a bail guarantee insurance policy) (§100(3)).

   Current step
8. 8

   The detention period in the 1st instance is up to 6 months, renewed twice by 2 months each, and the judgment is pronounced within that time. The period spent in detention is later counted toward the term of the sentence (the period that must be served).

Frequently asked questions

Practical questions that come up right away in this procedure.

QI was told a family member has been arrested. What should I do right away?

First, check which police station the person is at, what the charge is and who the investigator in charge is, and hire a defense lawyer. Within 48 hours after the arrest, it is decided whether to request a detention warrant.If it is requested, a hearing is held by the next day. So documents such as a certificate of employment, a family relation certificate, documents confirming the place of residence and settlement materials must be gathered before the hearing.

QCan family members attend the hearing to examine the warrant (영장실질심사)?

In principle, you cannot go in. The examination is closed to the public, so only the defense lawyer attends and the family waits outside the courtroom. Instead, submit through the defense lawyer the family's petition for leniency and materials showing that the person supports the family and has a home to live in with them.However, if the judge finds it appropriate, the judge may allow family members to observe. Family members may state an opinion with the judge's permission.

QWhat happens if there is no time to find a lawyer?

No one goes through the hearing without a defense lawyer. If a suspect for whom a detention warrant has been requested has no defense lawyer, the court appoints a court-appointed defense lawyer (a lawyer chosen by the state).If you can find a private lawyer, hire one right after the arrest. This secures time to prepare before the hearing.

QHow can I visit someone who has been detained?

General visits to an unconvicted inmate (an inmate whose trial has not ended) in a detention center are allowed 1 time a day. They take place during working hours on days other than public holidays and similar days, for up to 30 minutes per visit. Check how to book, what to bring and whether online or smart visits are available with the detention center or the guidance of the Korea Correctional Service of the Ministry of Justice.Visits by a defense lawyer have no limit on number or time. Check with the detention center how to deposit money for the inmate (money used inside the detention center).

QWhat is the difference between a review of the legality of detention and bail? Can family members file the request?

The timing differs. A review of the legality of detention is a procedure to ask for release before indictment; bail is a procedure to ask for release after indictment.For both, besides the person and the defense lawyer, a legal representative, spouse, lineal relative, sibling, family member, cohabitant or employer can also file the request. With the court's permission, bail money can be replaced with securities or a guarantee certificate (such as a bail guarantee insurance policy).

QIf detained, how long can I be held at most?

At the investigation stage, it is up to 30 days: 10 days with the police and 10 days with the prosecutor of the Public Prosecution Office, plus one 10-day extension. For the 1st-instance trial, it is up to 6 months. During that time, you may be released through a review of the legality of detention or bail.The days spent in detention are later counted toward the term of the sentence (the period to be served). If an acquittal, a suspended sentence, a fine or the like is pronounced, the detention warrant loses its effect.