In our next two columns we would like to discuss parts of Korean law that we hope you don’t need to know much about: criminal law. Unfortunately, it is all too easy to wind up in a bad situation ― whether you are guilty or not ― and find yourself dealing with police and prosecutors in an adversarial setting.
The beginning of criminal cases in Korea is a lot like their beginning in the U.S. and many other countries: One person reports a crime, and if the police deem it worthy of investigation, they will interrogate the suspect. If the suspect denies the accusations, the interrogation will proceed to probe other factual questions to try to establish guilt. If a police officer thinks there is sufficient evidence to warrant prosecution, he will send his notes and request for prosecution to the prosecutor’s office.
The prosecutor will then examine the case and conduct another interrogation. This is quite different from the U.S., where prosecutors generally do not directly gather evidence. The chief difference between police interrogation and interrogation by the prosecutor is that, while the suspect is able to deny any statement the police attribute to him, statements prepared by the prosecutor may be used as evidence if there is no likelihood the statement contains false information, based on other objective information, and the statements were made by the suspect in a “reliable state.” Here “reliable state” means the suspect was free from duress or outside influence, or had his lawyer present.
After interrogation, the prosecutor will decide if the case has merit. If so, the suspect becomes a defendant, and the case is transferred to the court system. In our next column we will talk about the judicial procedures in criminal law, but first we will discuss the role of your lawyer, including your need for or access to a potentially free attorney, in the criminal justice system.
You are allowed to have a lawyer with you any time, and any time is a good time. Unless you speak fluent Korean, however, you will also need an interpreter, and one person cannot fulfill both obligations.
You do not always have to hire a lawyer, although at a minimum you should have some sort of witness to appear with you, or record, every investigation possible. Attorneys are legally mandatory for minors, the elderly or defendants suspected of having mental or physical issues that may make it difficult for them to understand or participate in the proceedings, or when the charge carries a minimum sentence of three years or more.
In those cases, if the defendant is unable to afford or appoint an attorney due to poverty or other issues, the court can appoint one. The most frequent basis for appointed counsel is the last category, threat of imprisonment for three years or more, as many common crimes including robbery, rape and homicide are included there.
Korea’s appointed attorney system uses private attorneys as opposed to a “public defender” type of organization. That is, rather than have an institution that operates like a firm handling the defense of the indigent, those cases are individually assigned to attorneys that apply to the government to be on the appointed counsel list. In Seoul the competition for appointment is rather high, and some degree of experience is usually needed to function as appointed counsel.
Next time we will discuss the relatively new institution of the jury trial in Korea and how a criminal case works its way through the judicial system.
By Darren Bean and Yuna Lee
Yuna Lee is a Korean attorney at Seowoo & Minyul Law Firm in Seoul. You can read her blog at askakoreanlawyer.blogspot.com or if there is a legal issue you would like to be addressed, email email@example.com. ― Ed.
This column is not intended as legal advice. No action should be taken or avoided based on this column, no attorney-client relationship is formed by reading this column or contacting the authors, and the authors expressly disclaim any liability for the content of this column. Those with legal problems in Korea should seek advice from an attorney.