[Legal Issue Check] Is the Detention Period Counted in Days (日) or Hours (時)?

On the 11th, the Supreme Prosecutors' Office issued a directive to frontline prosecutors' offices to continue calculating detention periods in 'days' as before.

This came amid growing confusion at the frontline over a court ruling that ordered the cancellation of President Yoon Seok-yeol's detention by calculating the detention period in 'hours' instead of the traditional 'days'. Prosecutor General Shim Woo-jung had earlier accepted the court's ruling and decided not to file an immediate appeal, but there are voices of dissent among frontline prosecutors.

Those who argue that the court's ruling is problematic say that calculating detention periods in days has been a practical custom followed by our criminal justice institutions for over 70 years and is also reasonable in terms of legal interpretation. They question why President Yoon should be an 'exception'. On the other hand, those who support the court's ruling say that this decision is a reasonable judgment from the perspective of protecting the rights of the accused and is not legally incorrect.

First, let's look at the side that sees a problem. The court stated, "The period excluded from the detention period should be calculated in actual 'hours', not 'days'." However, Article 66, Paragraph 1 of the Criminal Procedure Act, which regulates period calculation, as well as Article 203 of the same law, specify the prosecutor's detention period as '10 days' rather than '240 hours'. Here, the unit is days.

In particular, the issue in this case concerns the period during which investigation-related documents and evidence are transferred from the prosecution to the court and then returned to the prosecution for the detained suspect's warrant review or detention appropriateness review. Since prosecution investigations are restricted during this period, it is supposed to be deducted from the detention period (10 days). In practice, this deduction has always been made in days.

However, in this case, the court did not calculate the period as the customary 'two days' but as '33 hours and 7 minutes', judging that "the prosecution was initiated after the detention period had expired." Additionally, the court ruled that the period during which records were exchanged for the arrest appropriateness review should not be deducted and must be included in the detention period, which also differs from practical custom.

Nevertheless, Prosecutor General Shim instructed not to file an immediate appeal. This was said to consider the Constitutional Court's ruling that the immediate appeal provision in the Criminal Procedure Act is unconstitutional as it violates the warrant principle and due process. However, the directive to calculate in 'days' was not an unconditional acceptance of the court's ruling but was based on the view that this issue would be addressed in the main trial anyway, according to internal prosecution explanations.

Since the defense in President Yoon's treason trial is expected to argue for dismissal of the indictment on procedural grounds, this issue can be sufficiently contested during that process, and they intend to do so. Because there was a reasonable explanation for Prosecutor General Shim's occasional guidance, the investigation team, which had insisted on the necessity of an immediate appeal, reportedly followed the directive without major resistance.

Meanwhile, around the court and prosecution, there is a considerable view that what the court really wanted to address was not the detention period but the 'investigative authority issue of the Corruption Investigation Office for High-ranking Officials (CIO)'. The court is said to have doubts about the CIO's investigation itself, and this is expected to become an issue in future trials.