Responding to Arrest, Detention & Search and Seizure

An arrested person is held in a cell and cannot get documents or meet people on their own. In the end, the family has to gather the materials for the pre-detention hearing from outside. In a visit, defense counsel hears how the arrest happened and what was said during questioning, and tells the family what to bring and by when.

What the judge looks at is whether the person has a fixed residence, whether there is a risk of destroying evidence, and whether there is a risk of flight. So the materials are chosen to address these three points. Materials that directly rebut each ground are better than a large volume.

• Residence: resident registration record (주민등록등본), lease agreement, family members living together
• Risk of flight: certificate of employment or business registration certificate, family relationship certificate, circumstances of dependent family
• Risk of destroying evidence: list of materials already submitted, record of complying with summonses
• Compensation for harm: settlement agreement, repayment records, documents on a court deposit
• Petitions: from family, coworkers and longtime neighbors

At the hearing, the judge calls the suspect in and asks questions directly. Even if the charge is supported to some degree, the warrant can be rejected if the grounds for detention are not established. So we write the written opinion separating the parts that dispute the charge from the parts that dispute the need for detention.

The suspect's answers at the hearing are recorded and later read during the investigation and trial. Out of a sense of injustice, people often explain the case at length and end up contradicting what they said during questioning. In a visit before the hearing, we go over what questions may come up and how far to answer.

Not only the arrested or detained suspect, but also defense counsel, the spouse, parents, grandparents, children or grandchildren, siblings, family members, people living with the suspect and the employer can petition the court for a review of the legality of arrest or detention (체포·구속적부심사). The court examines the suspect within 48 hours of receiving the petition and may order release on the condition of posting a bond (Criminal Procedure Act Article 214-2).

After indictment, you apply for bail (보석). The court must grant bail unless, for example, the crime carries a maximum penalty of more than 10 years, the person is a repeat or habitual offender, or there is a clear risk of destroying evidence or flight (Criminal Procedure Act Article 95). If further questioning is scheduled during detention, we attend that questioning too.

You cannot stop a search carried out under a warrant. Physically blocking it or hiding materials creates new problems of obstruction of official duties or destruction of evidence. Instead, ask to see the warrant, check the scope of places and items, and object on the spot to any search beyond that scope so it is recorded.

A request to hand over items not listed in the warrant is a request for voluntary submission (임의제출). Items you hand over voluntarily can be seized without a warrant (Criminal Procedure Act Article 218), so decide what to hand over in consultation with your lawyer. When the search ends, get the list of seized items and check that nothing is missing from it.

• The suspect, the charge, the place to be searched and the items to be seized as stated in the warrant
• Whether permission for nighttime execution is stated (Criminal Procedure Act Article 125)
• Whether you received the list of seized items, and whether it matches what was actually taken
• Separately write down any objections you made at the scene and when you made them

As a rule, for data storage media, investigators must define the scope of the necessary information and take it by printing or copying it, and may seize the device itself only when that is difficult (Criminal Procedure Act Article 106(3) and Article 219). If the whole device was taken, we take part in the later selection process to make sure information unrelated to the case is not passed on as evidence.

You can ask for the return of items that no longer need to be held, even before indictment. If the investigators refuse, you can ask the court for a decision ordering return or provisional return (Criminal Procedure Act Article 218-2). If the device is essential for your work, we ask for it to be returned first after a copy has been secured.