The Korea Herald


Court suggests ‘conditional discharge’ bail of suspects

By 신혜인

Published : April 18, 2011 - 19:41

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Korea’s Supreme Court suggested Monday that judges be allowed to discharge suspects on conditional bail as a way to bridge differences with the prosecution over the country’s controversial pre-trial warrant issuance system.

The two legal sectors have long been at odds over what prosecutors claim is the court’s “much too strict” standard in issuing arrest and search warrants. The court argues such a standard is essential for human rights protection, under which no one should be detained unless absolutely necessary.

Admitting that there can always be a “gray area” in deciding whether to accept the prosecution’s warrant request, the Supreme Court has suggested combining bail and restraining orders with the discharge or non-arrest of suspects.

Under the plan, judges can delay decisions on whether to issue an arrest warrant for suspects by first asking them to post bail.

The top court said it has submitted the plan to the parliamentary special committee on judicial reform for review.

Under this alternative, prosecutors would be authorized to immediately arrest a suspect if she or he does not respond to orders to appear for investigation. The bail money would be forfeited by the state in this case.

The suspect’s whereabouts and certain movements would also be limited under the plan ― forbidding him or her from approaching the victim or key testifiers, according to the court. The prosecution would also be authorized to immediately arrest the suspect if such rules were broken.

The court said such rules could also be applied to the issuance of search warrants once all sides have come to an agreement.

“The current system had problems because the court cannot always decide yes or no based on limited information,” said Lim Si-kyun of the court administrative office.

“There has been a need for us to refer to the conditional discharge systems in countries such as the U.S., Britain and Germany.”

The National Assembly judicial reform committee said it will hold an all-members meeting to discuss the Supreme Court’s alternatives and vote on the measures as early as Wednesday, party sources said.

Following years of bitter spats between the two legal authorities, the government has been trying to set up a better standard for dealing with criminal cases to balance efficient law enforcement with the protection of human rights.

Claiming the court has often discouraged its investigation efforts ― especially those concerning so-called white-collar crimes of bribery and tax evasion ― by rejecting warrants, prosecutors have asked that the law be amended so they can appeal rejected warrants to higher courts.

Seoul courts accuse prosecutors of ignoring the non-restraint investigation principle for the sake of easier investigations.

Under the Constitution, prosecutors requesting a warrant must prove a person suspected of committing a crime punishable by three years or more imprisonment may escape or destroy evidence.

The number of suspects being arrested pre-trial has gradually decreased in recent years with some 10,000 warrants being rejected by the court each year, according to state data.

By Shin Hae-in (