Review of detention and bail

Which procedure to use depends on whether you are before or after indictment. If you have received an indictment (공소장), you have already been indicted.

• Confirm the date of detention and the current stage (police, Public Prosecution Service (공소청) or court).
• Get a certified copy of the detention warrant (구속영장). It must be provided on request to anyone who can apply for a review of detention (Investigation Rules (수사준칙) Article 34).
• Calculate the remaining detention period: 10 days with the police, 10 days with the prosecutor and a 10-day extension (Criminal Procedure Act (형사소송법) Articles 202, 203 and 205).
• Write down what has changed since the warrant was issued, such as a settlement, compensation, a place to live, a confirmation of return to work or deteriorating health.

The detained suspect, their lawyer, legal representative, spouse, lineal relatives, siblings, family members, people living with them and their employer can apply to the court for a review of the legality of detention (구속적부심사). The court questions the suspect and examines the record within 48 hours of receiving the application and decides on release or dismissal; the decision is made within 24 hours of the end of the hearing (Criminal Procedure Act Article 214-2(1) and (4); Criminal Procedure Rules (형사소송규칙) Article 106). As a rule, the judge who issued the warrant cannot take part in the review.

The court can order release on condition of paying a security deposit and can attach conditions such as a restriction on residence. However, if there is a strong risk of destroying evidence or of harm to the victim or others, release on deposit is not ordered (same article, (5) and (6)). The decision cannot be appealed.

The indicted defendant and the family members and others listed above apply to the court (Article 94). Once bail (보석) is requested, it must be granted unless one of the exceptions below applies (Article 95), and even if an exception applies, it can be granted if there is good reason (Article 96). Unless there are special circumstances, the court decides within 7 days of receiving the application (Criminal Procedure Rules Article 55).

• Offenses punishable by death, life imprisonment, or imprisonment with or without labor for a maximum of more than 10 years
• Repeat offenses or habitual offenses
• When there is a strong risk of destroying evidence or fleeing
• When the defendant's residence is unclear
• When there is a strong risk of harm to the victim, witnesses or others

The court sets one or more conditions, such as a written pledge to appear, an agreement to pay a deposit, a restriction on residence, a ban on approaching the victim, a written undertaking by another person to secure the defendant's appearance (출석보증서), a pledge not to leave the country, or a deposit to compensate the victim (Article 98). Conditions the defendant cannot meet with their financial means cannot be imposed, and the deposit can be replaced by a surety document submitted by someone other than the defendant (Articles 99(2) and 100(3)).

If, after release, you fail to answer a summons without good reason or breach a condition, bail can be revoked and the deposit forfeited (Articles 102 and 103). Breaching a condition without good reason can also lead to an administrative fine or confinement.

Resubmitting the same materials as when the warrant was issued rarely changes the result. Build your application around what has changed since then. If there is an urgent reason such as a serious illness or a family funeral, you can also consider a suspension of the execution of detention (구속집행정지), which pauses the detention for a time (Articles 101(1) and 209).

• Home: resident registration abstract, lease agreement
• Job: certificate of employment, business registration certificate, confirmation of return to work
• Family: family relationship certificate, materials showing dependants
• Compensation: settlement agreement, statement of non-punishment, deposit certificate
• Health: medical certificate, medical records

We visit to hear the circumstances and first decide whether it is better to apply now or wait and apply once new circumstances are in place. We write the application, organise and submit the materials, and on the hearing date Jisan Law attends and presents our views (Criminal Procedure Act Article 214-2(9)). If your family is gathering documents, contact us through the chat on this page.