Interpretation related to Article 201-2 Paragraph 7 and Article 214-2 Paragraph 13 of the Criminal Procedure Act

Under the Criminal Procedure Act of Korea, the police and the prosecution may each detain a suspect for investigation for a period of 10 days (however, the prosecution may request a one-time extension). Prior to detention, a suspect is mandatorily subject to a pretrial detention examination, and may also request a judicial review of the legality of their arrest or detention. During such procedures, including when the investigation records or the suspect are submitted or transferred to the court, the investigative authorities are effectively unable to carry out the investigation. This leads to a practical issue in that the guaranteed 10-day investigation period during detention is not fully available to the investigators. To address this limitation, Article 201-2(7) of the Criminal Procedure Act stipulates that, in the case of a pretrial detention examination, the period during which the investigation records remain with the court (i.e., from the time the court receives the documents to when they are returned) shall be excluded from the calculation of the detention period. Similarly, Article 214-2(13) provides for such exclusion in the case of judicial review of arrest or detention. However, Article 201-2(7) states that the period should be calculated based on “days”, whereas Article 214-2(13) uses “time” as the basis for calculation, leading to controversy regarding the method of computation. Moreover, there is debate over whether the period of court review during a judicial review of the legality of an arrest should also be excluded from the detention period. In my opinion, the exclusion period under Article 201-2(7) should be calculated based on full calendar days, excluding the first day (the date of submission), while the exclusion period under Article 214-2(13) should be calculated in hours, and the court’s review period in the Judicial review of the legality of arrest should also be excluded from the calculation of the detention period, considering the wording and legislative history of the relevant provisions.