Arrest Warrant
Overview
An arrest warrant refers to a warrant that investigative agencies (prosecutors or judicial police officers) must obtain from a court (judge) to forcibly arrest a suspect under the Criminal Procedure Act. This system embodies the constitutional principle of warrant requirement and is an essential procedural device to protect an individual's physical freedom from state coercive measures. Arrests made without an arrest warrant are, in principle, illegal arrests, and warrantless arrests are only permitted in exceptional cases prescribed by law, such as flagrante delicto arrests or emergency arrests.
Main Content
1. Requirements for Issuance of an Arrest Warrant
An arrest warrant is issued by a court (a judge of the competent district court) upon the application of a prosecutor. The court examines the necessity and proportionality of the arrest to decide whether to issue the warrant. Specifically, it is issued when there are reasonable grounds to suspect that the suspect has committed a crime and the suspect, without justifiable reason, fails to comply with a summons or is likely to fail to comply. Additionally, factors such as the suspect's unknown residence, risk of evidence destruction, and risk of flight are considered.
2. Execution of an Arrest Warrant
An arrest warrant is executed by a prosecutor or judicial police officer. During execution, the warrant must be presented, and the suspect must be informed of their rights, including the right to counsel and the right to remain silent. After arrest, the suspect must be promptly informed of the reason for arrest and the right to counsel, and a detention warrant must be requested or the suspect released within 48 hours. If a detention warrant is not requested within 48 hours, the suspect is immediately released.
3. Validity of an Arrest Warrant
An arrest warrant is valid for 7 days from the date of issuance. However, the court may extend this period if deemed necessary. An arrest warrant can generally be executed only once, and re-execution requires obtaining a reissued warrant. Additionally, an arrest warrant may be accompanied by a search of specific locations such as a residence or office, in which case the location can be searched without a separate search warrant.
4. Difference Between an Arrest Warrant and a Detention Warrant
An arrest warrant is intended to temporarily arrest a suspect and bring them to an investigative agency, whereas a detention warrant aims for long-term detention. After an arrest under an arrest warrant, a detention warrant must be requested within 48 hours, and if not issued, the suspect is released. Furthermore, an arrest warrant may be issued even for relatively minor crimes or cases with low risk of evidence destruction or flight, while a detention warrant requires stricter conditions.
5. Remedies Against an Arrest Warrant
To challenge the issuance or execution of an arrest warrant, one may file a quasi-appeal (Article 417 of the Criminal Procedure Act) or request a review of the legality of arrest (Article 214-2 of the Criminal Procedure Act). The review of legality of arrest is a system where the arrested suspect, their lawyer, or legal representative requests the court to examine the legality of the arrest. If the court finds the arrest unlawful, it orders the release of the suspect.
6. Exceptions to an Arrest Warrant
Flagrante delicto arrests, emergency arrests, and quasi-flagrante delicto arrests are exceptions that allow warrantless arrests. A flagrante delicto arrest allows anyone to arrest a person caught in the act of committing a crime or immediately after without a warrant. An emergency arrest allows a prosecutor or judicial police officer to arrest a suspect without a warrant only when there are reasonable grounds to suspect the suspect of committing a crime punishable by death, life imprisonment, or imprisonment for three years or more, and there is urgency such that there is no time to obtain a court warrant.
Recent Trends
From 2024 to 2025, there have been several significant changes and discussions regarding the arrest warrant system. First, with the enforcement of the amended Criminal Procedure Act in 2024, the right of a suspect to have a lawyer present during the execution of an arrest warrant has been strengthened. Now, the right of a lawyer to participate during the arrest process is explicitly guaranteed, and investigative agencies must notify the lawyer before the arrest. Second, in early 2025, the Supreme Court issued a precedent applying stricter standards for issuing arrest warrants. In particular, it specified the criteria for assessing 'risk of flight' and 'risk of evidence destruction,' ruling that it is unjust to recognize a risk of flight solely based on past criminal records or occupation. Third, with the prevalence of digital evidence, procedures for seizing and searching electronic devices during the execution of an arrest warrant have been strengthened. According to rules amended in late 2024, to seize a suspect's mobile phone or computer during the execution of an arrest warrant, a separate search and seizure warrant is required, or in urgent cases, a warrant must be obtained afterward. Fourth, as of 2025, the National Assembly is discussing a bill to extend the validity period of arrest warrants from the current 7 days to 10 days. This reflects the practical difficulties of investigative agencies but continues to spark debate over concerns about human rights violations. Additionally, with the increased activity of the Corruption Investigation Office for High-ranking Officials (CIO) in recent years, the court's review standards for arrest warrants requested by the CIO are being established separately. In March 2025, statistics were released showing that the issuance rate of arrest warrants in CIO investigations was lower than in general prosecutorial investigations, sparking controversy over the CIO's investigative capabilities.
Related Topics
- [[Detention Warrant]]
- [[Warrant Requirement]]
- [[Flagrante Delicto Arrest]]
- [[Emergency Arrest]]
- [[Review of Legality of Arrest]]
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