Under Korean law, a court could issue arrest warrants only when there is a risk of flight or harm to the public or if a suspect were thought to have an opportunity to destroy evidence. However, in practice, a court exercises a wide discretion in issuance of arrest warrants, often turning down in the past arrest warrant applications against defendants who were formerly high-ranking officials or with a high social-status.

Recently, however, Korean courts have been irritating the public prosecutors as the courts have turned down the prosecutors’ request to issue arrest warrants for two high-profile cases.

The first rejection came when a Seoul court turned down a request last September 18 for an arrest warrant for Shin Jeong-ah, a disgraced art curator suspected of embezzlement and academic fraud. In the aftermath, the prosecution strengthened their probe on Shin and her alleged lover Byeon Yang-kyoon, former presidential secretary on national policy.

Tensions between prosecutors and judges reached a new peak following a Busan court’s decision to strike down a warrant to detain Jung Yun-jae, a former presidential secretary suspected of receiving bribes. The judged who reviewed the warrant application stated that there was no reason to detain Jung because the prosecution has not provided sufficient explanation of the charges and Jung is not a flight risk. The judge also said there is no concern that Jung would destroy evidence.

The prosecution is not hiding its displeasure. According to newspaper sources, on a workday prior to the start of Thanksgiving holidays, Prosecutor General Chung Sang-myoung stayed home in the morning and only came to his office around 3 p.m. A spokesman for the Supreme Public Prosecutors Office was quoted as saying “[Prosecutor General] appears to have many things to think about.”

Though the prosecutors claim that the courts’ rejection of the above warrants significantly hinders and delays the pending investigations, the debate over the issuance of arrest warrants is nevertheless a good one from individuals’ standpoint. That is, as the courts seem to be at least making efforts to shed its unfair image in regard to issuance of arrest warrants, such efforts could eventually lead to more protection of individuals’ rights.

In fact, according to the guidelines of the Seoul Central District Court for issuance of arrest warrants (announced in early 2006), the court will not issue arrest warrants if the suspect is expected to be given a suspended sentence or a fine in a court trial and if the suspect is able to provide a legitimate challenge to his or her detention despite lack of any supporting proof in the relevant investigative records. It also would not issue warrants if it appeared that the damage to the life of a person by jailing him during an investigation would outweigh the public good that would result from detaining him.

As the prosecutors have indicated that they will soon re-apply for arrest warrant for Shin Jeong-ah and also request arrest warrant for Byun Yang-kyoon, it remains to be seen how the confrontation between the courts and the prosecutors over arrest warrants will play out.