Confining the Defendant
Indictment during Confinement
- “Indictment during confinement” refers to the prosecutor filing prosecution while the suspect has been confined. In this case, the defendant will stand trial while being arrested or confined in prison, etc.
Reason for Confinement
- The court may confine the defendant if there is a justifiable reason to suspect the defendant committing the crime, or if the defendant falls under any of the following cases.
· If the defendant has no proper residence
· If the defendant might destroy evidence
· If the defendant tries to escape or might try to escape
- When screening the reason for confinement, the court considers the crime’s gravity, risk of a second conviction, the risk of harm the victim and major testifiers may suffer (Article 70, paragraph 2 of the Criminal Procedure Act).
- For cases with a fine less than KRW 500,000 or punished with detention or penalties, the defendant may not be confined unless he/she does not have a proper residence (Article 70, paragraph 3 of the Criminal Procedure Act).
How to Confine the Defendant
- Issuance and Execution of Arrest Warrant
· The court shall issue an arrest warrant to confine the defendant (Article 73 of the Criminal Procedure Act).
· The judicial police official shall execute the arrest warrant as ordered by the prosecutor. However, the presiding judge, commissioned judge, or entrusted judge may order the arrest warrant execution if urgently required (Article 81, paragraph 1 of the Criminal Procedure Act).
※ According to the prosecutor’s order, the prison officer shall execute the arrest warrant issued to confine the defendant locked in jail or prison (Article 81, paragraph 3 of the Criminal Procedure Act).
· The person executing the warrant shall make sure to present the warrant and deliver its copy before executing the arrest warrant and quickly bring the defendant to the designated court or another designated place (Article 85(1) of the Criminal Procedure Act).
※ The person executing the arrest warrant may arrest the defendant if necessary, even without holding the arrest warrant. In this case, the person shall notify the defendant of the summarized prosecution information and the issuance of the arrest warrant before execution. After the execution, the person shall promptly present the arrest warrant and deliver its copy to the defendant (Article 85(3) and (4) of the Criminal Procedure Act).
· Unless the defendant has escaped, the person executing the arrest warrant shall notify the summarized crime information, reason for confinement, and the right to appoint an attorney before confining the defendant (Article 72 of the Criminal Procedure Act).
- Notification of Confinement, Etc.
· The person executing the arrest warrant shall provide a written notice on the case name, date and place of confinement, the summarized crime-related information, reason for confinement, and the purpose of the defendant being able to appoint an attorney. The person executing the arrest warrant shall notify this fact to the confined defendant’s attorney, if any. If an attorney has not been appointed, the person executing the warrant shall notify the person entitled to assign an attorney-at-law under Article 30, paragraph 2 of the Criminal Procedure Act, chosen by the defendant (Article 87 of the Criminal Procedure Act).
· The person executing the arrest warrant shall promptly inform the defendant of the prosecution information (Article 88 of the Criminal Procedure Act).
※ However, informing the defendant before confinement on the summarized prosecution information and the right to appoint an attorney is regulated under the post-hearing procedure. Therefore, violation of the above obligation does not affect the effectiveness of the arrest warrant (
Supreme Court Decision No. 2000모134 Decided November 10, 2000).
- Period of Confinement
· In principle, the confinement period of the defendant is two months. However, if a particular reason requires prolonging the confinement period, the period may be renewed up to two times for two months, respectively, in each court trial. However, suppose there shall be an appellate instance inevitably due to the suspect or the suspect’s attorney applying inspection of evidence and documents requiring an additional trial. In this case, the confinement period may be renewed no more than three times (Article 92, paragraphs 1 and 2 of the Criminal Procedure Act).
· The confinement period shall not include the suspended period of trial proceedings or the period of arrestment, imprisonment, or confinement before filing the prosecution (Article 92, paragraph 3 of the Criminal Procedure Act).
Cancellation of the Confinement, Etc.
- There may be no reason for confinement, or the reason may be expired. In this case, the court may decide to cancel the confinement by its official authority or by the claim of the prosecutor, defendant, attorney, or the person entitled to appoint an attorney-at-law (Article 93 of the Criminal Procedure Act).
- If justifiable reasons exist, the court may suspend the execution of detention by placing the defendant under the supervision of relatives, a protection organization, or other suitable persons or by restricting the area of his/her dwelling after listening to the prosecutor’s opinion. However, the court may omit to ask the prosecutor’s opinion if the situation is urgent (Article 101, paragraphs 1 and 2of the Criminal Procedure Act).
Bail System
Definition of Bail System
- The “bail system” refers to the system releasing the confined defendant by suspending the confinement execution on the condition of paying a certain amount of guarantee money (Collection of Legal Terms and Cases, By the Ministry of Government Legislation and Korea Legislation Research Institute, 2003).
Request for Bail
- Any person who falls under the following categories may request bail for the defendant confined in court (Article 94 of the Criminal Procedure Act).
· Defendant
· Defendant’s attorney
· Legal Representative
· Spouse
· Lineal Relative
· Sibling
· Family Member
· Housemate
· Employer
Cases in which Bail is Permitted
- The court shall permit the request of bail for any of the following cases (Article 95 of the Criminal Procedure Act).
· If the defendant committing a crime resulted in him/her being sentenced to death, imprisoned for life, or more than 10 years of long-term imprisonment or imprisonment without labor.
· If the defendant committed a cumulative offense or is a habitual offender.
· If there is a justifiable reason to believe that the defendant destroyed or might destroy evidence.
· If there is a justifiable reason to believe that the suspect escaped or might escape.
· If the suspect does not have a proper residence.
· If there is a justifiable reason to believe that the defendant harmed or might harm a person recognized to know important case-related information for trial or the person’s relatives, that lead to death, physical damage, or property damage.
- Regardless of the above cases, the court may decide to permit the defendant to bail by its official authority or by the claimant’s request if a justifiable reason exists (Article 96 of the Criminal Procedure Act).
Condition of Bail
- When permitting bail, the court shall decide that the defendant shall fulfill more than one condition among the conditions below if required and justifiable (Article 98 of the Criminal Procedure Act).
· The defendant shall submit a written oath of attending the lawsuit at the date and place designated by the court and shall not destroy evidence.
· The defendant shall submit an agreement confirming his/her promise to pay an amount equivalent to the guarantee money determined by the court.
· The defendant shall only reside at the place designated by the court. If the place of residence shall be changed, the defendant shall obtain the court’s permission and take measures to prevent escape.
· The defendant shall not fatally or physically harm the victim, and a person recognized to know important case-related information for trial or the victim’s/person’s relatives, or damage their property. Moreover, the defendant shall not approach the victim or person, such as visiting his/her residence or workplace.
· The defendant shall submit a letter of guarantee of attendance prepared by a person other than the defendant.
· The defendant shall pledge not to go abroad without the court’s permission.
· The defendant shall deposit or provide a guarantee equivalent to the deposit amount through a method designated by the court for the injured party to recover its rights.
· The defendant or a person nominated by the court shall pay the guarantee money or provide security.
· Lastly, the defendant shall implement any other suitable condition determined by the court to guarantee his/her appearance.
- The court considers the following matters when determining conditions for bail (Article 99 of the Criminal Procedure Act).
· The nature and circumstance of the crime
· Probative power of the evidence
· The defendant’s criminal record, personality, environment, and assets
· Status after the defendant committed the crime, such as compensation to the victim, etc.
Execution of Bail
- The following conditions for bail shall be fulfilled for the court to determine and execute the permission of bail. If deemed necessary, the court may decide to implement the consent for bail after fulfilling other conditions (Article 100, paragraph 1 of the Criminal Procedure Act).
· The defendant shall submit a written oath of attending the lawsuit at the date and place designated by the court and shall not destroy evidence.
· The defendant shall submit an agreement confirming his/her promise to pay an amount equivalent to the guarantee money determined by the court.
· The defendant shall submit a letter of guarantee of attendance prepared by a person other than the defendant.
· The defendant shall deposit or provide a guarantee equivalent to the deposit amount through a method designated by the court for the injured party to recover its rights.
· The defendant or a person nominated by the court shall pay the guarantee money or provide security.
- The court may permit persons apart from the bail claimant to pay the guarantee money. Moreover, it may allow the submission of a letter of guarantee indicating payment of stocks, bonds, or the guarantee money amount submitted by persons apart from the bail claimant at any time (Article 100, paragraphs 2 to 4 of the Criminal Procedure Act).
- The court may request a government office or other public institutions to take appropriate measures in the scope necessary for the released defendant to comply with the conditions of bail after deciding to permit the bail (Article 100, paragraph 5 of the Criminal Procedure Act).
Modification or Cancellation of Bail Conditions
- The court may decide to modify the defendant’s bail conditions or suspend execution of the corresponding state for a certain period by its official authority or by the request of the person entitled to claim bail (Article 102, paragraph 1 of the Criminal Procedure Act).
- Suppose the defendant commits any of the following acts after being bailed. In this case, the court may decide to cancel the bail decision by its official authority or by the prosecutor’s request (Main Text of Article 102, paragraph 2 of the Criminal Procedure Act).
· If the defendant escaped
· If there is a justifiable and reliable reason to believe that the defendant fled or might destroy evidence
· If the suspect refused to appear without a justifiable reason after being summoned
· If there is a justifiable and reliable reason to believe that the defendant harmed or might harm a person recognized to know important case-related information for trial or the person’s relatives, that lead to death, physical damage, or property damage
· If the defendant violated the conditions stipulated by the court
※ Suppose the defendant violated the conditions of bail without a justifiable reason. In this case, the court may fine up to KRW 10 million or sentence the defendant to detention within 20 days (Article 102, paragraph 3 of the Criminal Procedure Act). The defendant may file an immediate appeal on this decision (Article 102, paragraph 4 of the Criminal Procedure Act).
- If the bail has been canceled, the court may decide to confiscate some or all of the guarantee money or security by its official authority or by the prosecutor’s request (Article 103, paragraph 1 of the Criminal Procedure Act).
- Suppose the released defendant had been sentenced to the same criminal case on the condition of paying the guarantee money or providing security and was summoned to execute the confirmed judgment. If the defendant refused to appear or escaped without a justifiable reason, the court shall decide to confiscate some or all of the guarantee money or security by its official authority or by the prosecutor’s request (Article 103, paragraph 2 of the Criminal Procedure Act).
Invalidation of Bail
- Invalidation of the arrest warrant will immediately make the conditions of bail lose its effect. If the confinement or bail is canceled, or if the arrest warrant’s effectiveness expires, any guarantee money or security not confiscated shall be returned to the defendant within seven days after the claim (Article 104 and Article 104-2, paragraph 1 of the Criminal Procedure Act).
※ The Difference between “Bail” and “Suspension of Confinement Execution”
“Suspension of confinement execution” refers to the court placing the defendant under the supervision of relatives, a protection organization, or other suitable persons if justifiable reasons exist. The court may also declare the defendant’s residence restriction to suspend the confinement execution (Article 101 of the Criminal Procedure Act). This condition is different from the “bail system,” since it does not require the payment of guarantee money.
< Source: Collection of Legal Terms and Cases, By the Ministry of Government Legislation and Korea Legislation Research Institute, 2003 >