What Should Foreigners Do When Arrested at Incheon Airport in South Korea? Attorney’s Practical Guide

Why Are the First 48 Hours So Critical?

※ This case is based on actual events but has been modified for understanding purposes, and client privacy has been protected.

In the case of the foreign businessman mentioned above, “time” was the key factor. Under South Korean Criminal Procedure Act, if a detention warrant is not requested within 48 hours after arrest, the suspect must be released immediately (Article 200-4, Paragraph 1). However, if you respond to investigative questioning without any legal assistance during this time, unfavorable statements may be recorded in the protocol and used as decisive evidence in later trials. We will now explain the specific response procedures step by step.

1. What Are the Main Reasons Foreigners Get Arrested at Incheon Airport?

The most common cases of foreigners being arrested at Incheon Airport involve drug smuggling and customs law violations (undeclared import of high-value goods). Drug smuggling in particular carries severe penalties under the Narcotics Control Act and the Act on Aggravated Punishment of Specific Crimes (Special Aggravation Act). Customs violations can also result in imprisonment depending on the value of goods.

Drug Smuggling Cases

The Narcotics Control Act distinguishes between narcotics, psychotropic substances, and cannabis, prescribing different penalties for each. Psychotropic substances are classified from Category (a) to (d) based on their risk level, with different penalties accordingly.

Import/Export of Narcotics (Article 58, Paragraph 1, Item 1)

Those who import/export, manufacture, or sell narcotics, mediate sales, or possess/own for such purposes face life imprisonment or imprisonment of 5 years or more.

Import/Export of Psychotropic Substances (Differential Punishment by Category)

Psychotropic substances are classified from Category (a) to (d) based on their potential for abuse, medical use, and degree of physical/mental dependence, with significantly different penalties for each category.

Import/Export of Cannabis (Article 58, Paragraph 1, Item 5)

Those who import cannabis or export or cultivate/possess cannabis for export purposes face life imprisonment or imprisonment of 5 years or more.

Aggravated Punishment for Profit Motive/Habitual Offenders (Article 58, Paragraph 2)

Those who commit crimes under Article 58, Paragraph 1 for profit or habitually face death penalty, life imprisonment, or imprisonment of 10 years or more.

Aggravated Punishment Under Special Aggravation Act Article 11

Based on the value of narcotics, the Act on Aggravated Punishment of Specific Crimes (Special Aggravation Act) Article 11 applies for enhanced punishment.

Special Aggravation Act Article 11(1) – Import/Export, Manufacturing, etc.

Violations of Article 58(1)(1)-(4), (6), (7) (excluding crimes related to sale, receipt, provision, and possession/ownership for sale, mediation, or receipt purposes):

Special Aggravation Act Article 11(2) – Possession, Use, etc.

Violations of Articles 59(1)-(3) and 60 (only crimes related to narcotics and psychotropic substances, excluding cannabis):

※ Special Aggravation Act Article 11(2) does not apply to cannabis-related offenses.

Customs Act Violations

Basic penalties under Article 269 (Smuggling) of the Customs Act are as follows:

Article 269(1) (Import/Export of Prohibited Goods under Article 234): Those who import/export publications disturbing constitutional order, items disclosing government secrets, counterfeit currency/securities, etc. face up to 7 years imprisonment or fine up to 70 million KRW.

Article 269(2) (Undeclared/Falsely Declared Import): Those who import goods without declaration under Article 241 or with false declarations face up to 5 years imprisonment or fine up to 10 times the customs duty or the original price (whichever is higher).

Article 269(3) (Undeclared/Falsely Declared Export/Return): Those who export/return goods without declaration or with false declarations face up to 3 years imprisonment or fine up to the original price.

Aggravated Punishment Under Special Aggravation Act Article 6

Article 6(1) – Import/Export of Prohibited Goods (Customs Act Article 269(1) violation)

※ Additional fine: 2 to 10 times the value of goods

Article 6(2) – Undeclared/Falsely Declared Import (Customs Act Article 269(2) violation)

※ Additional fine: 2 times the original price of imported goods

Article 6(3) – Undeclared/Falsely Declared Export/Return (Customs Act Article 269(3) violation)

※ Additional fine: Original price of exported or returned goods

Article 6(9) – Habitual/Organized Offenders: Those who form organizations or groups or habitually commit crimes under Articles 269 to 271 or 274 of the Customs Act face death penalty, life imprisonment, or imprisonment of 10 years or more.

When foreigners bring in expensive watches, jewelry, luxury bags, etc. exceeding duty-free limits at Incheon Airport without customs declaration, Article 269(2)(1) of the Customs Act applies. If the original price is 200 million KRW or more, aggravated punishment under Special Aggravation Act Article 6(2) applies.

2. Can Search and Seizure Occur Without a Warrant at Arrest?

Yes, search and seizure can occur without a warrant at the arrest scene. Article 216(1)(2) of the Criminal Procedure Act stipulates that “search, seizure, and inspection may be conducted without a warrant at the arrest scene.” Therefore, at the moment of arrest at Incheon Airport, immediate search and seizure of belongings, bags, and mobile phones can occur.

Legal Basis for Warrantless Search and Seizure

The Criminal Procedure Act prescribes different requirements for warrantless search and seizure depending on the arrest situation.

Article 216(1)(2) (Search and Seizure at Arrest Scene): Prosecutors or judicial police officers may conduct search, seizure, and inspection without a warrant at the arrest scene when necessary to arrest a suspect.

Article 217(1) (Search and Seizure After Emergency Arrest): When there is urgent need to seize items owned, possessed, or stored by an emergency arrestee, prosecutors or judicial police officers may conduct search, seizure, and inspection without a warrant within 24 hours from the arrest. This provision applies even at locations other than the arrest scene (e.g., the suspect’s residence).

Article 217(2) (Post-Facto Warrant Application): If there is need to continue holding seized items, a search and seizure warrant must be applied for without delay, and the warrant must be applied for within 48 hours from the arrest.

Practical Considerations

The following points require attention during the search and seizure process at the airport.

First, receipt of seizure list. According to Article 129 of the Criminal Procedure Act, when items are seized, a list must be prepared and delivered to the owner, possessor, custodian, or equivalent person. Always receive and verify the seizure list.

Second, response to mobile phone seizure. According to precedent, searching electronic information stored on mobile phones requires a separate warrant. While the mobile phone itself may be seized at the arrest scene, searching its contents may be restricted.

Third, exercising the right to remain silent. During search and seizure, investigators may ask about the source or acquisition circumstances of items. You have the right not to be compelled to make statements against yourself (Article 12(2) of the Constitution).

3. What Happens Within 48 Hours After Arrest?

The 48 hours after arrest are the most critical time determining the suspect’s fate. According to Article 200-4(1) of the Criminal Procedure Act, if prosecutors or judicial police officers do not apply for a detention warrant within 48 hours of arresting a suspect, the suspect must be released immediately. During this time, interrogation, warrant application, and warrant review hearings occur intensively.

Procedures by Type of Arrest

Under South Korean Criminal Procedure Act, arrests are broadly classified into three types.

Emergency Arrest (Article 200-3): When there is substantial reason to suspect that someone has committed a crime punishable by death, life imprisonment, or imprisonment of 3 years or more, and there is urgency making it impossible to obtain a warrant, the person may be arrested without a warrant. Drug smuggling and high-value customs violations both meet these requirements.

Flagrante Delicto Arrest (Articles 211, 212): A person in the act of committing a crime or immediately after is a flagrant offender who may be arrested by anyone without a warrant. At airport customs, you may be arrested as a flagrant offender the moment prohibited or undeclared goods are discovered.

Regular Arrest (Article 200-2): Arrest with an arrest warrant. In airport arrest cases, flagrante delicto or emergency arrest is most common.

Requirements for Detention Warrant Application

For prosecutors to apply for a detention warrant, Article 70 of the Criminal Procedure Act requires criminal suspicion (substantial reason to believe a crime was committed) and grounds for detention (one of: no fixed residence, risk of evidence destruction, flight or risk of flight).

For foreigners, detention warrants are often applied for on grounds of having no fixed residence domestically and high likelihood of leaving the country. Therefore, it is important to demonstrate domestic connections, guarantors, and willingness to surrender passport.

4. How Long Is the Investigation Period After Detention?

The investigation period after detention is maximum 30 days: police 10 days, prosecution 10 days, extension 10 days. Article 202 of the Criminal Procedure Act sets the police detention period at 10 days, Article 203 sets 10 days after transfer to prosecution, and Article 205 allows prosecutors to extend once for 10 days.

Detention Period Details

Important Rights During Detention

During detention, suspects may exercise the following rights.

First, the right to request review of detention legality. Under Article 214-2 of the Criminal Procedure Act, the suspect or their defense counsel, legal representative, spouse, lineal relatives, or siblings may request the court to review the legality of detention. If the court finds the detention unlawful or unjust, it may order release. However, in practice, suspects are rarely released through detention review.

Second, the right to visitation. Under Article 34 of the Criminal Procedure Act, detained suspects may freely meet with their defense counsel.

Third, the right to inspect and copy investigation records. Under Article 266-4 of the Criminal Procedure Act, defense counsel may request the prosecutor to inspect and copy documents necessary for trial preparation after indictment.

5. What Should I Do First When Arrested?

The first things to do when arrested are: request consular notification, contact family, and retain counsel. Foreign suspects in particular have the right to have their arrest notified to their consulate under Article 36 of the Vienna Convention on Consular Relations, and this is also an obligation of South Korean investigative agencies.

Step 1: Request Consular Notification

According to Article 36 of the Vienna Convention on Consular Relations, when a foreigner is arrested or detained, the competent consular post must be notified without delay, and at the suspect’s request, investigative agencies must provide notification. Consular officials have the right to visit and communicate with the suspect and arrange legal representation for the suspect.

The consulate contacts family in the home country, introduces local attorneys, provides interpretation support if needed, and monitors detention conditions. If this right was not informed or exercised, it may serve as grounds for claiming procedural violations in subsequent trials.

Key Embassy/Consulate Contacts (Seoul, near Incheon Airport)

Step 2: Contact Family

Contacting family immediately after arrest is important for several reasons: securing bail or attorney fees, obtaining domestic connections (guarantors) to prevent detention, emotional support, and urgent work-related measures. Investigative agencies cannot refuse a suspect’s request to contact family without justifiable reason.

Step 3: Contact Support Organizations

There are organizations that can help foreigners arrested in South Korea. Korea Legal Aid Corporation (Tel: 132) provides free legal consultation and litigation representation to economically disadvantaged foreigners, with multilingual consultation available in English, Chinese, Vietnamese, etc. The Foreign Resident Support Center (Tel: 1345) provides interpretation services in 20 languages and guidance on legal, medical, and immigration matters.

6. Why Is Legal Counsel Essential?

The right to counsel is a fundamental right guaranteed by Article 12(4) of the Constitution. For foreigners in particular, lack of understanding of Korean criminal procedures, language barriers, and cultural differences mean that responding without an attorney can result in unfavorable statements being recorded in protocols, leading to irreversible consequences.

Role of Defense Counsel

In the initial response stage, defense counsel advises on exercising the right to remain silent (Article 12(2) of the Constitution), participates in suspect interrogation under Article 243-2 of the Criminal Procedure Act to object to improper interrogation methods, and raises objections regarding seized items. Defense counsel can also meet with the suspect before interrogation to help ensure accurate communication during questioning.

In the detention prevention stage, counsel submits opinions to the court requesting warrant dismissal, represents the suspect at warrant review hearings under Article 201-2 of the Criminal Procedure Act, and requests non-detention investigation with exit ban as a condition.

In the investigation stage, counsel reviews investigation records to understand what evidence has been collected, discovers and submits evidence favorable to the suspect, and negotiates with prosecutors for reduced charges or prosecutorial discretion.

Why This Is Especially Important for Foreign Suspects

First, overcoming language barriers. It is virtually impossible for a foreigner who does not speak Korean to accurately understand the intent of investigators’ questions and respond appropriately. Even with interpretation, understanding the subtle differences in legal terminology is difficult.

Second, procedural differences. Criminal procedures differ by country. Foreigners familiar with their home country’s procedures may act disadvantageously due to misunderstanding Korean procedures.

Third, increased likelihood of detention. Foreigners easily meet the detention ground of “flight risk.” Having no domestic residence and the impossibility of trial if they leave the country results in higher detention rates than for Korean nationals. In reality, foreigners are highly likely to be detained. An attorney must actively demonstrate domestic connections, guarantors, and willingness to accept exit bans to maintain non-detention status.

Public Defender System

For suspects/defendants who cannot afford an attorney due to financial circumstances, there is a public defender system. Under Article 201-2(8) of the Criminal Procedure Act, a public defender is appointed if there is no counsel at warrant review hearings, and under Article 33, public defenders are appointed in mandatory defense cases. However, public defenders handle many cases and may not be able to devote sufficient time to individual cases, so retaining private counsel is advantageous if possible.

7. FAQ

Atlas Legal, leveraging its geographical advantage of being located in Songdo, Incheon, has handled numerous foreigner criminal cases occurring at Incheon Airport. Attorneys who can communicate directly in English respond quickly to the scene, handling cases consistently from initial response through trial.

※ The legal information in this article is written for general guidance purposes, and legal judgments may vary depending on the specific facts of individual cases. For actual case responses, please consult with an attorney.