Procedure guide
Which stage are you at now
If the police have contacted you, or you have received documents you cannot read, the first thing to know is the order in which this will proceed. Police, prosecution, and court are different stages, and what can be done differs at each stage. If you are a foreigner, immigration measures may follow separately from the criminal procedure.
Before reading
This page explains the general order in which criminal procedures usually proceed, and is not legal advice for your specific case. Because the facts and evidence differ from case to case, the order described here does not necessarily apply to your case, and this page does not predict or guarantee any result. The cases below are ones actually handled, but the result in one case does not say anything about the result in another. If documents you received have dates or deadlines, those dates are as written on the documents and should be confirmed in a consultation, not on this page.
Language
This site can be read in nine languages. However, consultations are held only in Korean and English, and interpretation is not provided. If you need another language, please come with someone who can interpret for you, or have that person join the call.
The four stages this page covers
Stage 1
Police investigation
This is the stage where the police investigate the case. The statements and materials you provide here are the starting point for all later stages.
What happens at this stage
When the police receive a complaint or report, they summon the suspect for questioning. During questioning, the suspect may be asked to write a written statement, and the police may also prepare a statement record of the questions asked and the suspect's answers. When the police finish their investigation and determine there is suspicion, they send the case to the prosecution. If they do not find suspicion, they make a decision not to forward the case. Once that decision is made, the investigation ends for the time being. But if the complainant files an objection, the case is passed on to the prosecution.
What can be done at this stage
What you are being investigated for can be confirmed before the questioning. Whether you are writing a written statement or being questioned for a statement record, you may exercise the right to remain silent. Appointing counsel before responding to questioning is also done at this stage. It is better to receive assistance from the early stages of the investigation. On the other hand, there have been cases where a person ignored multiple police summonses and went into hiding, and was then arrested and a detention warrant was issued.
What the lawyer does at this stage
Before the questioning, the lawyer obtains the complaint to understand what the issue is, and organizes the direction of the statement. If a detention warrant is requested, the court summons the suspect for a hearing. Although the principle is that suspects are investigated without detention, the investigative agency can request a detention warrant if there is substantial suspicion and the suspect has no fixed residence, or there is a risk of destroying evidence or fleeing. The court decides whether to issue it, considering these grounds along with the seriousness of the crime, the risk of reoffending, and the risk of harm to the victim and witnesses. In the detention warrant cases handled, the lawyer argued that the suspect had a clear residence, a job, and no reason to flee.
Actual cases that ended at this stage
Stage 2
Prosecution
At this stage, the prosecutor reviews the forwarded case and decides whether to indict. Some cases end here.
What happens at this stage
The prosecutor who receives the case decides whether to indict after supplementary investigation. Decisions not to indict include no suspicion (insufficient evidence), and suspension of indictment, where suspicion exists but prosecution is not deemed necessary. Suspension of indictment considers the suspect's age, behavior, intelligence and environment, relationship with the victim, motive, method and result of the crime, and conduct after the crime. When this decision is made, the criminal process ends. But not being punished is not the same as no record of the investigation remaining. If you need a records check for your residence status, please raise it at the consultation. If the prosecutor decides to indict, for cases where a fine is appropriate, a summary indictment is filed. Otherwise, a formal indictment is filed and the case goes to trial.
What can be done at this stage
For a summary indictment, the court, without a trial, issues a summary order as requested by the prosecutor, and the defendant does not need to appear in court. If you receive a summary order and wish to plead not guilty or believe the fine is too high, you may request a formal trial. However, the law has been amended so that if you request a formal trial, a higher fine than the summary order can be imposed, so caution is needed. The deadline for requesting a formal trial is written on the documents you received, so please have those documents ready when you confirm. If you show financial hardship during the investigation, the court may appoint a public defender after indictment.
What the lawyer does at this stage
Before the prosecutor decides whether to indict, the lawyer submits materials for consideration. In the lawyer's suspension of indictment cases, settlements were reached with victims, and withdrawal of complaint and request for no punishment documents were submitted. In addition, the lawyer submitted opinions and materials such as letters of reflection and certificates of completion of prevention education, arguing that there was no risk of reoffending. In a case involving the Labor Standards Act, the prosecutor withdrew the indictment after reviewing the submitted evidence at the first trial date, and the court issued a decision to dismiss the prosecution.
Actual cases that ended at this stage
- Indictment suspendedSuspension of indictment for violation of the Act on the Aggravated Punishment of Specific Economic Crimes (Embezzlement)
- Indictment suspendedSuspension of indictment for obscenity using communication media
- Indictment suspendedSuspension of indictment for obscene acts using communication media
- No charge and no referralNo suspicion (insufficient evidence) of statutory rape of a minor
Stage 3
Court
At this stage, the court hears the indicted case and determines the sentence. Even for the same guilty verdict, what remains after differs depending on the sentence.
What happens at this stage
At trial, the court examines evidence and renders a judgment. The outcome can be a suspended sentence, suspended execution of a sentence, imprisonment, or a fine. A suspended sentence is where, when sentencing imprisonment or imprisonment without labor for not more than one year, suspension of qualifications, or a fine, the court postpones the pronouncement of the sentence itself, considering extenuating circumstances. If two years pass from the day of the pronouncement and no sentence of suspension of qualifications or heavier is imposed during that time, the prosecution is then deemed extinguished. That is not an acquittal. Before those two years pass, this does not apply. Suspended execution is where the sentence is pronounced but its execution is postponed; it is still a guilty verdict. In a case involving a military employee, because the moment a suspended sentence of imprisonment without labor or heavier becomes final, he loses his status, it was as important to avoid suspended execution and receive a fine as to avoid actual imprisonment.
What can be done at this stage
You may appeal a first-instance judgment, and the prosecutor may also appeal. Among the cases handled, there was one where a first-instance prison sentence was reduced to suspended execution on appeal, and the person was released immediately; and another where a first-instance suspended execution was changed to a fine on appeal. If you are detained while standing trial, you may request bail. Bail is a system that allows a detained defendant to be released pending trial, with conditions, until the judgment is pronounced. In a case handled, bail was granted on payment of a deposit of 10 million won, and the person was released the same day the decision was made. If found not guilty finally, you may claim compensation from the state for the costs incurred in the trial.
What the lawyer does at this stage
When determining the sentence, the court considers not only the severity of the crime but also the defendant's age, behavior, environment, and circumstances after the crime, among other sentencing conditions. The lawyer's work is to prepare and submit those materials. The most significant factor is the victim's expression of desire not to punish, commonly called a settlement. In a drunk driving case, the lawyer had the defendant submit letters of reflection three or four times a week. In an assault case where no settlement was reached, a fine was imposed that was half the amount of the summary fine.
Actual cases that ended at this stage
- AcquittalAcquittal for quasi-rape of an unconscious person
- Sentence suspendedSuspended sentence for larceny
- Suspended sentenceSuspended sentence for theft
- Reduced sentence and fineFor a military civil servant's refusal of a breath alcohol test, etc., the sentence was reduced from imprisonment with a suspended sentence to a fine, overcoming the crisis of 'automatic retirement'
- Prosecution dismissedLabor Standards Act and Guarantee of Retirement Benefits Act Violation, Dismissal of Prosecution
Stage 4
Immigration
Even after the criminal procedure ends, foreigners have one more thing to face. Based on the fact of a criminal punishment, the immigration office may issue a separate measure.
What happens at this stage
If a foreigner residing in Korea is criminally punished, they may receive a departure order or an order to forcibly depart from the immigration office. A departure order is an administrative measure issued by the head of a local immigration office to a foreigner who has violated the Immigration Act, ordering them to depart Korea. It is not part of the criminal trial but is issued separately. Even for relatively light punishments such as a fine, many people face the risk of losing years of built life.
What can be done at this stage
The mere fact of a criminal punishment does not necessarily mean you must leave. You can challenge the illegality of the measure, considering comprehensively the severity of the violation that was the basis of the measure, the length of stay in Korea, family relations, and humanitarian grounds. The way to challenge is a lawsuit to cancel the departure order; in that case, a motion to suspend execution was filed together. There is a deadline. Under Article 20 of the Administrative Litigation Act, a suit to cancel the order must be filed within 90 days of the day you learned of it, and once that period passes the order can no longer be challenged even if it was unlawful. The departure date written on the order itself runs separately. If you have received the written order, bring that document as it is and come for a consultation as soon as you can.
What the lawyer does at this stage
One case handled was where, after a summary order of a 3 million won fine for special assault, the head of the Daejeon Immigration Office issued a departure order. The lawyer filed a lawsuit to cancel the departure order and a motion to suspend execution simultaneously, arguing that the grounds for the measure did not exist, and that compared to the harm to the client and family, the public interest to be achieved was negligible, so the measure violated the principle of proportionality and constituted an abuse of discretion. That case did not go to judgment. After the lawsuit was filed, the issuing agency itself cancelled the departure order and extended the period of stay, and the lawsuit was withdrawn.
Relevant provisions
Provisions of the Immigration Act regarding departure orders and compulsory departure.
- Immigration Act Article 46
- Specifies the foreigners subject to compulsory departure. The example given is a person who has been sentenced to imprisonment without labor or heavier and released, under item 13.
- Article 11, Paragraph 1, Item 3
- A case where there is reasonable ground to be concerned that the person may engage in conduct harmful to the interests of the Republic of Korea or public safety, and this ground arose after entry. This was the provision that was the basis of the measure in the case handled.
- Article 68, Paragraph 1, Item 1
- For a person subject to compulsory departure who voluntarily leaves the country at their own expense, a departure order, which is a more lenient measure than compulsory departure, is issued.
- Article 68, Paragraph 4
- If a person who has received a departure order does not leave the country by the set deadline, an order for compulsory departure may be issued.
Joo Youngjae's registered specialty is criminal law only. This stage is covered because of direct experience handling a case that involved a departure order after a criminal punishment, and that case ended not with a court judgment but with the issuing agency cancelling the measure on its own. Therefore, it is not a precedent, and does not mean the same result will occur in other cases. There is no record of handling immigration administrative work such as visa issuance or change of residence status.
First, confirm which stage you are at
During the call, we confirm what documents you received, what stage your case is at, and what comes next. Consultations are held in Korean and English.
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