SOFA Criminal Cases: What US Military Personnel and Family Members Should Know in Korea

How SOFA Jurisdiction Works

SOFA establishes a framework for dividing criminal jurisdiction between Korean authorities and US military authorities. In practice, Korea holds primary jurisdiction over most offenses committed by US personnel, particularly serious crimes such as drug offenses, violent crimes, sexual assault, and traffic offenses causing injury or death. The US military retains primary jurisdiction only over a narrower category of offenses, such as those arising solely from official duty or crimes solely against US property or another service member, subject to Korea's right to waive or not waive jurisdiction.

In most cases, once Korean police or prosecutors decide to investigate, the case proceeds under the Korean Criminal Procedure Act (형사소송법, Hyeongsa Sosongbeop), meaning Korean investigators, not US military investigators, control the process, timeline, and evidence gathering.

Custody: Who Holds You During Investigation

One of the most important features of SOFA is custody arrangements during investigation. In many cases, US military authorities retain physical custody of the accused service member (through the unit or military police) until formal indictment (gongso jegi, 공소제기) by the Korean prosecutor, even though the investigation itself is conducted by Korean police. This differs from ordinary Korean criminal cases, where a suspect who is not a SOFA-covered person may be held in a Korean detention facility from the point of arrest.

Once indicted, however, custody typically transfers to Korean authorities, and the case proceeds through the Korean court system like any other criminal trial. This is why the period between the start of investigation and indictment is critical — decisions made and evidence given during this window often shape the outcome of the case.

Your Rights During Investigation

Under the Korean Criminal Procedure Act, a suspect (piuija, 피의자) has the right to request the presence of counsel during questioning, the right to remain silent, and the right to have an interpreter present if the suspect does not speak Korean. Article 200 of the Criminal Procedure Act confirms that police and prosecutors may request a suspect's appearance to hear a statement, but attendance for voluntary questioning is different from being under arrest, and it is important to understand which situation you are in before answering questions.

Do not assume that cooperating fully or answering every question without counsel present will resolve the matter quickly. Statements made to Korean police early in an investigation are often used as evidence later, and inconsistencies can be used against the accused even if they result from language barriers or misunderstanding of legal terminology.

Exit Bans and Travel Restrictions

A common concern for foreign nationals, including SOFA personnel and family members, is whether they can leave Korea while a case is ongoing. Under Article 4 of the Immigration Act (출입국관리법), the Ministry of Justice may impose an exit ban (chulguk geumji, 출국금지) — up to six months at a time — on a person who is a defendant in an ongoing criminal trial, or up to one month where a person is under criminal investigation and departure is deemed inappropriate. This means that even before indictment, someone under active investigation could face restrictions on leaving the country.

For military personnel, coordination between the unit's legal office (SJA), Korean prosecutors, and immigration authorities determines how this plays out in practice, but family members without military affiliation may face the exit ban process directly like any other foreign national.

Working With Your Command and a Korean Attorney Together

SOFA cases typically involve two tracks running in parallel: the military's internal administrative or disciplinary process (which may affect your career, pay, or status) and the Korean criminal case (which determines guilt, sentencing, and potential exit bans or immigration consequences). A judge advocate or unit legal assistance attorney can advise on the military side, but they generally cannot represent you in a Korean court, since Korean criminal proceedings require a Korean-licensed attorney familiar with Korean procedure and, ideally, the practical realities of SOFA cases.

Engaging Korean counsel early — ideally at the investigation stage rather than after indictment — gives your attorney the opportunity to review evidence, attend interviews where permitted, and advise on strategy before your position is locked in by prior statements.

Step by step

1. 1Understand your custody statusConfirm with your unit's legal office whether you are being held in military custody, released pending investigation, or facing potential Korean detention, since this affects your immediate options.
2. 2Request an interpreter and clarify your rights before speakingIf questioned by Korean police, confirm whether you are a suspect or witness, request a qualified interpreter, and understand that you may decline to answer without counsel present.
3. 3Contact a Korean-licensed criminal defense attorney promptlyA Korean attorney can review the case status, communicate with prosecutors, and help protect your position before indictment, when key decisions about custody and charges are made.
4. 4Check for exit ban statusIf you are under investigation or facing charges, ask your attorney to check whether an exit ban has been or could be imposed under the Immigration Act, so you can plan travel and family matters accordingly.
5. 5Coordinate between military and civilian counselMake sure your unit legal office and your Korean criminal defense attorney are aware of each other's involvement so that the military administrative process and the Korean criminal case do not work at cross purposes.

Frequently asked questions