We are taking about a situation where a foreigner is accused of any crime in Korea but he has already left Korea for any reason. Some might come back to Korea to defend himself or some might just ignore it. However, just ignoring can’t free you from the potential legal risk. You won’t be allowed to enter into Korea and could be arrested at the border. Recently, Korean Police is very active in requesting the INTERPOL to issue a red notice in order to have law enforcement worldwide locate and provisionally arrest the suspect.
Then can a foreign suspect resolve a pending criminal case while staying abroad? The answer is yes, but in a very exceptional case. The Korean prosecutors are having a strict position that all suspects must appear at the face-to-face interrogation with the investigating authority. If the suspect refuses to do so or the Korean prosecutor can’t locate the suspect, the prosecutor suspends the investigation and asks the court to issue an arrest warrant. This warrant is noticed to the Korean immigration office. As a result, the suspect could be arrested when s/he passes the Korean border. Being abroad are usually insufficient as a just excuse.
There are, however, certain exceptions where the criminal case can be resolved without the suspect’s personal appearance:
(a) when it is apparent by the records that the alleged crime cannot be established as a matter of law
(b) when the victim drops the criminal accusation
– It is quite common in Korea that the victim and the suspect make a settlement and the victim drops the accusation. Some crime cannot move forward to the charge when the accusation is dropped, but some can. Even in the latter case, it is quite common for the prosecutors to drop the charge when the settlement is made. Sometimes, even if it cannot end up with dropping the charge, it could lead to the minimum punishment such as a fine with a low amount.
(c) when the statute of limitation has expired
– It should be noted, however, that under the Korean law the statute of limitations is suspended for the period during which the suspect stays abroad in order to evade the criminal punishment. The Korean court cases provide the basic rule of how to decide whether or not the statute of limitation is suspended. Very simplified version of this rule is, when the suspect stays out of Korea in order to live a normal life in a foreign country where his/her life is closely connected, the statute of limitation isn’t suspended.
We, as Korean criminal defense attorneys, have successfully represented many suspects who reside in the U.S. and Canada in applying these exceptions. We argued that the exception (a), (b) or (c) should apply as the case may be, and the prosecutors agreed. Our clients didn’t need to come to Korea during the proceedings. We also provide a service of contacting and settling with the victims in Korea. We contacted the victim and made a settlement, which then made the charge dropped by the prosecutor.
Of course, we have other cases where this kind of argument didn’t work. In such case, there is no other way but to come to Korea and we focus our representation on the argument of acquittal or lowering the punishment.
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