Hello. I am attorney Lee Kyung-jun of Cheongchul Law Firm.

When a DUI accident happens, you have probably seen the scene—in a movie or drama—where a passenger offers, “I’ll say I was driving.” The person who actually drove drunk tends to think that simply “not refusing” the offer is enough.

However, in its en banc decision of June 18, 2026, the Supreme Court of Korea made clear once again that criminal liability attaches to the very act of “going along without refusing.” In other words, mere consent or acquiescence can give rise to a separate offense—the crime of aiding a criminal’s escape (범인도피방조죄).

The decision we examine today is the Supreme Court en banc judgment of June 18, 2026, Case No. 2025Do11170 (aiding a criminal’s escape, etc.; appeal dismissed). As the most authoritative recent ruling on “driver swapping”—the most common scenario in DUI, hit-and-run, and Special Act on Traffic Accidents cases—it carries great practical significance.

1. Overview of the Case — A Passenger’s False Confession After a DUI Crash

In May 2023, the defendant caused an accident while driving under the influence. Immediately afterward, the passenger offered to “say I was the one driving,” and the defendant accepted, providing detailed information about how the accident occurred so that the passenger could falsely confess to investigators as the driver.

Prosecutors charged the defendant not only with violation of the Road Traffic Act (DUI) but also with “aiding a criminal’s escape.” The lower court found him guilty on all counts, sentencing him to 10 months’ imprisonment suspended for 2 years plus 80 hours of community service, and the Supreme Court en banc affirmed this by an 8-justice majority.

2. The Issue — The Line Between “Self-Escape” and “Aiding a Criminal’s Escape”

Article 151(1) of the Criminal Act (형법 제151조 제1항) punishes “a person who helps a criminal—one who has committed an offense punishable by a fine or heavier—to escape.” Yet under our law’s principle, the act of a criminal escaping “by himself” is not punishable. This rests on the “guarantee of the right of defense” principle: the instinct of self-protection is something the criminal law cannot blame.

How, then, should we treat a criminal who asks another person to “turn yourself in for me” or “describe the accident in my place,” and who accepts a false confession that the other person proposed first? The Supreme Court has long treated such conduct as an “abuse of the right of defense,” punishing it as instigation of, or aiding in, a criminal’s escape. This case squarely addressed whether that precedent should be maintained.

3. The Supreme Court’s Holding — Maintaining the “Criminal-Fabrication-Type Escape” Doctrine

The majority maintained the existing precedent (Supreme Court Judgment of Nov. 13, 2008, 2008Do7647, etc.). That is, where a criminal “promotes, reinforces, or facilitates” another person’s false confession, the crime of aiding a criminal’s escape may be established regardless of whether the form of participation is instigation or aiding.

In this judgment, the Supreme Court clearly established the concept of a “criminal-fabrication-type escape.” Putting forward a “false criminal” to bear punishment in one’s place distorts the very direction of the investigation and obstructs the investigation, trial, and execution of sentence against the true offender, posing a serious risk of grave interference with the administration of criminal justice.

By contrast, where a criminal merely stays within the bounds of “ordinary escape conduct”—such as requesting a getaway vehicle or receiving escape funds or a hiding place (cf. Supreme Court Judgment of Apr. 10, 2014, 2013Do12079)—there is room to treat it as an exercise of the right of defense and decline to punish. Ultimately, the line between the two lies in “whether the direction of the investigation itself was distorted.”

4. Why It Does Not Matter Whether It Was Instigation or Aiding

The majority held that it would be improper to draw a distinction between instigation and aiding in a “criminal-fabrication-type escape” so as to exempt only aiding. The first reason is that the process of forming intent between the criminal and the false confessor often unfolds naturally through “tacit understanding” rather than explicitly, making it difficult to determine after the fact who first proposed the false confession.

The second reason is one of criminal policy. If punishment turned on “who proposed it first,” cases of evading liability by coordinating later statements to recast one’s participation as “aiding” could become frequent. Because the very act of shifting the true offender’s responsibility onto a “false criminal” poses a serious risk to the administration of criminal justice, the majority concluded that abuse of the right of defense must be recognized regardless of the form of participation.

5. Practical Meaning — It Applies Beyond Driver Swapping

This judgment is not limited to “driver swapping.” The same doctrine operates in refusal of a breath test, hit-and-run causing death or injury, unlicensed driving, violations of the Special Act on Traffic Accidents, and ordinary assault or bodily injury. When a friend, family member, or employee offers to “say I did it,” the very act of accepting and conveying key information—how, when, and where the accident occurred—may be assessed as aiding a criminal’s escape.

In DUI cases especially, adding the crime of aiding a criminal’s escape on top of the original DUI offense (violation of the Road Traffic Act) makes sentencing far heavier. Even where DUI might end with a fine, once aiding a criminal’s escape is added, the conduct of “deceiving investigators and obstructing the administration of criminal justice” frequently leads directly to imprisonment or a suspended sentence.

The passenger who gave the false confession is also separately punished for the crime of aiding a criminal’s escape (Article 151(1) of the Criminal Act, 형법 제151조 제1항). In the end, a single line spoken “with good intentions” turns both people into criminal defendants.

6. What Clients Must Check at the Early Stage of a Case

Even if a passenger offers right after the accident to “make it look like I was driving,” you must stop and check the following before going along with it. ① Black-box footage, nearby CCTV, and the vehicle’s ECU data may already identify the driver objectively; ② the moment the passenger reverses their statement before investigators, you will be additionally booked for aiding a criminal’s escape; and ③ both people are exposed to the risk of perjury and changed statements.

If the case has already been filed after a driver swap was carried out, the first thing to do is to organize, in chronological order, “when, where, by whom, and what information was exchanged.” If KakaoTalk messages, texts, call recordings, or CCTV remain intact, a reasonable strategy may be to honestly acknowledge the facts based on that objective evidence and obtain a “sentence reduction for voluntary surrender.”

I also want to stress that, before appearing before investigators, you should obtain counsel’s assistance to organize the “timing, content, and motive of your voluntary surrender.” Because the effect of voluntary surrender (Article 52 of the Criminal Act, 형법 제52조) varies in its recognition depending on the timing of appearance and the content of the statement, merely intending to “now tell the truth” may not be enough.

7. Closing

This en banc judgment in Case No. 2025Do11170 once again clarifies the line between the criminal-law principle that “escaping by oneself is not punishable” and the further principle that “distorting the direction of the investigation is an abuse of the right of defense.” The key point is that, unlike merely providing escape funds or a hiding place, “putting forward a false criminal” is subject to punishment whether the form of participation is instigation or aiding.

If you have received a driver-swapping proposal in a DUI or traffic-accident case, or are already involved in such a matter, every word of your statement will determine the sentence. We recommend consulting a criminal-law specialist attorney as early as possible to design your defense strategy together.