ACT ON THE INTERNATIONAL TRANSFER OF SENTENCED INMATES
Act No. 7033, Dec. 31, 2003
Amended by Act No. 8728, Dec. 31, 2007
Act No. 9521, Mar. 25, 2009
Act No. 9819, Nov. 2, 2009
Act No. 10375, Jul. 23, 2010
Act No. 10538, Apr. 5, 2011
Act No. 11690, Mar. 23, 2013
CHAPTER I GENERAL PROVISIONS
The purpose of this Act is to prescribe requirements, procedures, etc. for the incoming transfer of nationals of the Republic of Koreas serving sentences in foreign countries and for the outgoing transfer of foreigners serving sentences in the Republic of Korea, so as to facilitate their rehabilitation and early reintegration into society.
The definitions of terms used in this Act shall be as follows:
| 1. | The term "sentence of imprisonment" means any punishment under the statutes of a foreign country equivalent to imprisonment with or without labor, for incoming transfer, or imprisonment with or without labor for outgoing transfer; |
| 2. | The term "incoming transfer" means any transfer from a foreign country to the Republic of Korea of a Korean national who is serving a sentence of imprisonment finally imposed in the foreign country (hereinafter referred to as "sentenced person subject to incoming transfer"), to enforce the sentence of imprisonment; |
| 3. | The term "outgoing transfer" means any transfer from the Republic of Korea to a foreign country of a foreigner who is serving a sentence of imprisonment finally imposed in the Republic of Korea (hereinafter referred to as "sentenced person subject to outgoing transfer"), to enforce the sentence of imprisonment; |
| 4. | The term "international transfer of a sentenced person" means any incoming transfer or any outgoing transfer; |
| 5. | The term "foreigner" means a national of a foreign country that has concluded a treaty, agreement, etc. (hereinafter referred to as "treaty") with the Republic of Korea on the international transfer of sentenced persons, or any person treated as a national of the foreign country under such a treaty. |
| Article 3 (Relationship with Treaties) |
The international transfer of sentenced persons shall be only effected based on and in accordance with this Act and a treaty, if any, which is concluded between the Republic of Korea and a foreign country. In such cases, if a treaty includes any provisions inconsistent with this Act, the provisions of the treaty shall prevail.
| Article 4 (Receipt and Transmission of Documents, etc. Related to International Transfer of Sentenced Persons) |
| (1) | The Minister of Foreign Affairs has the authority to receive from foreign countries, or to transmit to foreign countries, documents or notifications associated with requests, approval, etc. for the international transfer of sentenced persons: Provided, That in emergency or extraordinary circumstances, the Minister of Justice may exercise such authority with the consent of the Minister of Foreign Affairs. <Amended by Act No. 11690, Mar. 23, 2013> |
| (2) | The Minister of Foreign Affairs shall transmit to the Minister of Justice documents or notifications associated with the international transfer of sentenced persons that he/she receives from foreign countries under paragraph (1). <Amended by Act No. 11690, Mar. 23, 2013> |
| Article 5 Deleted. <by Act No. 9521, Mar. 25, 2009> |
| Article 6 Deleted. <by Act No. 9521, Mar. 25, 2009> |
| Article 7 Deleted. <by Act No. 9521, Mar. 25, 2009> |
| Article 8 Deleted. <by Act No. 9521, Mar. 25, 2009> |
| Article 9 Deleted. <by Act No. 9521, Mar. 25, 2009> |
| Article 10 Deleted. <by Act No. 9521, Mar. 25, 2009> |
CHAPTER III INCOMING TRANSFER
| Article 11 (Requirements for Incoming Transfer) |
| (1) | An incoming transfer may be effected only where the following requirements are met: |
| 1. | The facts upon which a sentence of imprisonment finally imposed in a foreign country is based shall also constitute a crime under the Acts of the Republic of Korea. In such cases, the same shall include where one of several facts constitutes a crime under the Acts of the Republic of Korea; |
| 2. | The sentence of imprisonment imposed in the foreign country shall become final and conclusive; |
| 3. | The sentenced person subject to incoming transfer shall consent to his/her incoming transfer. |
| (2) | With respect to incoming transfer, the consent of the sentenced person subject to such transfer shall be verified in writing by any of the following persons. In such cases, notice shall be given to the sentenced person subject to the incoming transfer to the effect that his/her consent may not be withdrawn pursuant to paragraph (3): |
| 1. | A public official designated by the Minister of Justice; |
| 2. | The head or a staff member of a Korean diplomatic office abroad having jurisdiction over the place in which the sentenced person subject to the incoming transfer is held in custody, upon delegation by the Minister of Justice; |
| 3. | A person designated by the head or staff member provided in subparagraph 2. |
| (3) | With respect to incoming transfer, the consent of the sentenced person subject to such transfer may not be withdrawn if verified under paragraph (2). |
| Article 12 (Requests, etc. for Incoming Transfer) |
| (1) | The Minister of Justice shall make a request for incoming transfer to a foreign country or accept a request for incoming transfer from a foreign country only where the requirements for incoming transfer under Article 11 are met and it is deemed necessary by comprehensively considering the security, social order, and public interest of the Republic of Korea, the proper guidance, reformation and likelihood of social rehabilitation of a sentenced person subject to incoming transfer, and so on. <Amended by Act No. 9521, Mar. 25, 2009> |
| (2) | If necessary for the request or acceptance under paragraph (1), the Minister of Justice may order the director of the relevant district prosecutors' office or the director of a branch office thereof (hereinafter referred to as "chief prosecutor, etc.") to collect and send related materials. <Amended by Act No. 9521, Mar. 25, 2009> |
| (3) | The chief prosecutor, etc. ordered under paragraph (2) shall order a prosecutor under his/her control to take necessary measures. |
| (4) | A prosecutor ordered by the chief prosecutor, etc. under paragraph (3) may, if necessary, direct judicial police officers to collect materials. |
[The Title of This Article is Amended by Act No. 9521, Mar. 25, 2009]
| Article 13 (Orders, etc. for Incoming Transfer) |
| (1) | If the Minister of Justice intends to transfer a sentenced person subject to incoming transfer to the Republic of Korea, he/she shall issue a written order to the relevant chief prosecutor, etc. to make such transfer. In such cases, the order shall be accompanied by related materials. |
| (2) | All written orders under paragraph (1) shall be signed and sealed by the Minister of Justice, which include the following information: |
| 1. | The nationality, name, gender, date of birth, and place of residence of the sentenced person subject to incoming transfer; |
| 2. | The name of the foreign country; |
| 3. | The name of the offense; |
| 4. | The type and duration of the sentence of imprisonment imposed in the foreign country; |
| 5. | The term of imprisonment to be executed in the Republic of Korea; |
| 6. | The date the order is issued; |
| 7. | Other necessary information. |
| (3) | The Minister of Justice shall give written notice to a sentenced person subject to incoming transfer if any of the following subparagraphs is applicable: |
| 1. | Where he/she has ordered the sentenced person subject to incoming transfer transferred to the Republic of Korea pursuant to paragraph (1); |
| 2. | Where he/she has received a request for incoming transfer from the relevant foreign country or has decided not to transfer to the Republic of Korea the sentenced person subject to incoming transfer whose consent has been verified pursuant to Article 11 (2). |
[This Article Wholly Amended by Act No. 9521, Mar. 25, 2009]
| Article 14 (Issuance of Warrants of Execution for Incoming Transfer) |
| (1) | Upon receipt of an order for incoming transfer under Article 13 (1), a chief prosecutor, etc. shall, without delay, order a prosecutor under his/her control to take necessary measures for the incoming transfer without delay. <Amended by Act No. 9521, Mar. 25, 2009> |
| (2) | If a prosecutor is ordered to take necessary measures for incoming transfer under paragraph (1), he/she shall, without delay, issue a warrant of execution for the incoming transfer to have the sentenced person subject to the incoming transfer surrendered by the relevant foreign country and then shall direct the sentenced person's sentence of imprisonment to be enforced. |
| (3) | All warrants of execution for incoming transfer under paragraph (2) shall be signed and sealed by the competent prosecutor, which include the following information: |
| 1. | The nationality, name, gender, date of birth, and place of residence of the sentenced person subject to incoming transfer; |
| 2. | The name of the foreign country; |
| 3. | The name of the offense; |
| 4. | The type and duration of the sentence of imprisonment imposed in the foreign country; |
| 5. | The term and place of imprisonment to be executed in the Republic of Korea; |
| 6. | The date the warrant is issued; |
| 7. | Other necessary information. |
| (4) | A warrant of execution for incoming transfer under paragraph (2) shall be accompanied by a certified copy or certified abstract of the judgment passed in the relevant foreign country or other documents attesting that the judgment is rendered. |
| (5) | A warrant of execution for incoming transfer issued under paragraph (2) shall have the same effect as a warrant of execution for penalty. |
| (6) | Chapter IX of Part I of the Criminal Procedure Act governing the detention of the accused shall apply mutatis mutandis to the execution of a warrant of execution for incoming transfer. |
| Article 15 (Effect of Foreign Court Judgments) |
In enforcing a sentence of imprisonment passed on a sentenced person subject to incoming transfer in the Republic of Korea by way of his/her incoming transfer, the judgment rendered by the foreign court shall have the same effect as that rendered by a Korean court pursuant to the Acts of the Republic of Korea.
| Article 16 (Duration of Sentences of Imprisonment to be Enforced and Methods of Enforcement thereof) |
| (1) | The duration of a sentence of imprisonment to be enforced against a sentenced person subject to incoming transfer surrendered to the Republic of Korea under Article 14 (2) (hereinafter referred to as "incoming sentenced person") shall be the duration of the sentence finally imposed in the relevant foreign country: Provided, That when the sentence of imprisonment is for a definite term, the term of enforcement thereof shall not exceed 50 years, and when the sentence of imprisonment finally imposed in the foreign country is life imprisonment, the duration of the sentence shall be deemed indefinite. <Amended by Act No. 10538, Apr. 5, 2011> |
| (2) | In enforcing a sentence of imprisonment under paragraph (1), a period of detention or imprisonment (including a period by which the sentence is reduced) in the relevant foreign country and a period required for the incoming transfer shall be included in the duration of the sentence. <Amended by Act No. 10375, Jul. 23, 2010> |
| Article 17 (Applicable Acts in Enforcing Sentences) |
| Article 18 (Restrictions on Institution of Prosecutions) |
If a sentence of imprisonment imposed on an incoming sentenced person in a foreign country is in enforcement, or if the enforcement of the sentence of imprisonment is terminated or the non-enforcement thereof becomes final and conclusive, no prosecution may be instituted against him/her on grounds of the same facts constituting the crime.
| Article 19 (Revocation, etc. of Foreign Court Judgments) |
| (1) | If the Minister of Justice receives a notification from a foreign country to the effect that the final judgment of the foreign country's court rendered against an incoming sentenced person has been revoked or the non-enforcement of the sentence of imprisonment imposed has become final and conclusive (if the final judgments rendered by the foreign court were more than one, it shall be limited to cases where all of them have been revoked or the non-enforcement thereof has become final and conclusive), he/she shall, without delay, withdraw, in writing, the order for incoming transfer under Article 13 (1) and then shall order the chief prosecutor, etc. having jurisdiction over the location of the prison, juvenile correctional institution, or detention center, or the branch thereof (hereinafter referred to as "prison, etc.") in which the incoming sentenced person is held in custody to release the incoming sentenced person. <Amended by Act No. 9521, Mar. 25, 2009> |
| (2) | Upon receipt of an order for release from the Minister of Justice under paragraph (1), the chief prosecutor, etc. shall immediately order a prosecutor under his/her control to release the relevant incoming sentenced person. |
| (3) | Upon receipt of an order for release under paragraph (2), the prosecutor shall immediately direct the warden of the prison, etc. in which the incoming sentenced person is held in custody to release the incoming sentenced person. |
| Article 20 (Modification of Types or Durations of Sentences of Imprisonment) |
| (1) | If the Minister of Justice receives a notification from a foreign country to the effect that the sentence of imprisonment imposed on an incoming sentenced person is subject to a change in the type or duration thereof on grounds of a commutation, etc., he/she shall, without delay, modify, in writing, the order for incoming transfer under Article 13 (1) and then shall order the chief prosecutor, etc. having jurisdiction over the location of the prison, etc. in which the incoming sentenced person is held in custody to enforce the sentence in accordance with the type or duration of the sentence of imprisonment so modified. <Amended by Act No. 9521, Mar. 25, 2009> |
| (2) | Articles 13 and 14 shall apply mutatis mutandis to the modification and execution of any order for incoming transfer under paragraph (1). |
| Article 21 (Notification to Foreign Countries Following Incoming Transfer) |
When any of the following subparagraphs applies, the Minister of Justice shall give notification thereof to the relevant foreign country without delay:
| 1. | When the enforcement of a sentence of imprisonment imposed on an incoming sentenced person is completed (including where it is deemed to have been completed); |
| 2. | When a sentence of imprisonment imposed on an incoming sentenced person is determined not to be further enforced; |
| 3. | When an incoming sentenced person escapes from custody before the enforcement of the sentence of imprisonment imposed on the incoming sentenced person has been completed. |
CHAPTER IV OUTGOING TRANSFER
| Article 22 (Provision of Information about Applicable Treaties) |
If a foreigner is finally sentenced to imprisonment and then is confined in a prison, etc. to serve his/her sentence, the warden of the prison, etc. shall inform him/her of the substance of any treaty applicable to him/her.
| Article 23 (Requirements for Outgoing Transfer) |
| (1) | An outgoing transfer may be effected only where the following requirements are met: |
| 1. | The facts upon which a sentence of imprisonment finally imposed in the Republic of Korea is based shall also constitute a crime under the Acts of a foreign country. In such cases, it shall include where one of several facts constitutes a crime under the Acts of the foreign country; |
| 2. | The sentence of imprisonment imposed in the Republic of Korea shall become final and conclusive; |
| 3. | The sentenced person subject to outgoing transfer shall consent to his/her outgoing transfer; |
| 4. | If a sentence of imprisonment finally imposed in the Republic of Korea includes the imposition of a fine, minor fine, confiscation, or additional collection, the execution of such fine, minor fine, confiscation, or additional collection shall be terminated or the non-execution thereof shall become final and conclusive. |
| (2) | The consent under paragraph (1) 3 shall be verified in writing by a prosecutor designated by the chief prosecutor, etc. who has been ordered by the Minister of Justice to make such verification. In such cases, notice shall be given to the sentenced person subject to outgoing transfer to the effect that his/her consent may not be withdrawn pursuant to paragraph (3). |
| (3) | With respect to outgoing transfer, the consent of the sentenced person subject to such transfer may not be withdrawn after such consent is verified under paragraph (2). |
| Article 24 (Interviews for Verifying Consent) |
If a person falling under any of the following subparagraphs requests an interview with a sentenced person subject to outgoing transfer confined in a correctional institution under subparagraph 4 of Article 2 of the Administration and Treatment of Correctional Institution Inmates Act to ascertain whether the sentenced person consents to his/her outgoing transfer under a treaty, the warden of the correctional institution shall accept such request to the extent that the said Act and other relevant Acts of the Republic of Korea provide: <Amended by Act No. 8728, Dec. 21, 2007> | 1. | The head or a staff member of the diplomatic office or consulate of the relevant foreign country; |
| 2. | Other persons designated by the relevant foreign country. |
| Article 25 (Requests, etc. for Outgoing Transfer) |
| (1) | The Minister of Justice shall make a request for outgoing transfer to a foreign country or accept a request for outgoing transfer from a foreign country only where the requirements for outgoing transfer under Article 23 are met and it is deemed necessary by comprehensively considering the security, social order, and public interest of the Republic of Korea, the proper guidance, reformation, likelihood of social rehabilitation of a sentenced person subject to outgoing transfer, the likelihood that the sentenced person will re-enter the Republic of Korea, the necessity for investigations into or judgment of other cases in the Republic of Korea, and so on. |
| (2) | If a sentenced person subject to outgoing transfer by a request for outgoing transfer under paragraph (1) is a person sentenced to imprisonment by a military court, the Minister of Justice shall obtain the prior consent of the Minister of National Defense and, if necessary for the transfer decision, he/she may request cooperation from the Minister of National Defense. |
| (3) | Article 12 (2) through (4) shall apply mutatis mutandis to any request or acceptance by the Minister of Justice under paragraph (1). |
[This Article Wholly Amended by Act No. 9521, Mar. 25, 2009]
| Article 26 (Orders, etc. for Outgoing Transfer) |
| (1) | If the Minister of Justice intends to transfer a sentenced person subject to outgoing transfer to a foreign country, he/she shall issue a written order to the relevant chief prosecutor, etc. to make such transfer. In such cases, the order shall be accompanied by related materials. |
| (2) | All written orders for outgoing transfer under paragraph (1) shall be signed and sealed by the Minister of Justice, which include the following information: |
| 1. | The nationality, name, gender, date of birth, and place of residence of the sentenced person subject to outgoing transfer; |
| 2. | The name of the foreign country; |
| 3. | The name of the offense; |
| 4. | The type and duration of the sentence of imprisonment; |
| 5. | The place to which he/she is to be surrendered; |
| 6. | The date the order is issued; |
| 7. | Other necessary information. |
| (3) | Where the Minister of Justice gives an order for outgoing transfer under paragraph (1), he/she shall issue a permit for transfer and send it to the Minister of Foreign Affairs, requesting him/her to transmit it to the relevant foreign country. <Amended by Act No. 11690, Mar. 23, 2013> |
| (4) | The Minister of Justice shall give written notice to a sentenced person subject to outgoing transfer if any of the following subparagraphs is applicable: |
| 1. | Where he/she has ordered the sentenced person subject to outgoing transfer transferred to the relevant foreign country pursuant to paragraph (1); |
| 2. | Where he/she has received a request for outgoing transfer from the relevant foreign country or has decided not to transfer to the relevant foreign country the sentenced person subject to outgoing transfer whose consent has been verified pursuant to Article 23 (2). |
[This Article Wholly Amended by Act No. 9521, Mar. 25, 2009]
| Article 27 (Issuance of Warrants for Outgoing Transfer) |
| (1) | Upon receipt of an order for outgoing transfer under Article 26 (1), a chief prosecutor, etc. shall, without delay, order a prosecutor under his/her control to take necessary measures for such outgoing transfer. <Amended by Act No. 9521, Mar. 25, 2009> |
| (2) | If a prosecutor is ordered by the chief prosecutor to take necessary measures for outgoing transfer under paragraph (1), he/she shall without delay issue a warrant for outgoing transfer to the warden of the prison, etc. in which the sentenced person subject to outgoing transfer is held in custody and then shall direct the outgoing transfer to be executed. |
| (3) | All warrants for outgoing transfer under paragraph (2) shall be signed and sealed by a prosecutor, which include the following information: |
| 1. | The nationality, name, gender, date of birth, and place of residence of the sentenced person subject to outgoing transfer; |
| 2. | The name of the foreign country; |
| 3. | The name of the offense; |
| 4. | The type and duration of the sentence of imprisonment; |
| 5. | The period for which he/she has been detained or has served his/her sentence; |
| 6. | The place to which he/she is to be surrendered; |
| 7. | The date the warrant is issued; |
| 8. | Other necessary information. |
| Article 28 (Measures to be Taken by Wardens of Prisons, etc.) |
The warden of a prison, etc. directed by a prosecutor to make the outgoing transfer under Article 27 (2) shall, upon receipt of a request for the surrender of the sentenced person subject to outgoing transfer from a foreign public official showing a permit for his/her transfer, surrender the sentenced person subject to outgoing transfer to the foreign public official at a place indicated on the warrant for outgoing transfer.
| Article 29 (Completion of Execution of Sentences against Outgoing Sentenced Persons) |
The enforcement of a sentence of imprisonment that is finally imposed on a sentenced person subject to outgoing transfer surrendered to a foreign country under Article 28 (hereinafter referred to as "outgoing sentenced person") shall be deemed to be completed when the execution of his/her sentence under the statutes of the foreign country equivalent to the sentence of imprisonment is completed (including where it is deemed completed) in the foreign country.
| Article 30 (Notice to Foreign Countries Following Outgoing Transfer) |
When any of the following subparagraphs applies, the Minister of Justice shall give notification thereof to the relevant foreign country without delay:
| 1. | When a final and conclusive judgment passed on an outgoing sentenced person can not be executed because it has been revoked through review of the judgment or through other judicial proceedings after the judgment, or the type or duration of the sentence is changed; |
| 2. | When an outgoing sentenced person is pardoned. |
| Article 31 (Transfer of Sentenced Persons Subject to Outgoing Transfer Confined in Military Prisons) |
| (1) | Where the Minister of Justice issues an order to transfer a sentenced person subject to outgoing transfer confined in a military prison to a foreign country, he/she shall notify the Minister of National Defense thereof before issuing such an order. |
| (2) | The Minister of National Defense shall, upon receipt of a notification under paragraph (1), direct the relevant Chief of Staff to confine the sentenced person subject to outgoing transfer in a prison, etc. In such cases, the consent of the Minister of Justice under Article 20 (1) of the Administration and Treatment of Military Correctional Institution Inmates Act shall be deemed given. <Amended by Act No. 9819, Nov. 2, 2009> |
CHAPTER V SUPPLEMENTARY PROVISIONS
| Article 32 (Transit under Escort) |
| (1) | Where it is necessary for public officials of the Republic of Korea to escort a sentenced person subject to incoming transfer or a sentenced person subject to outgoing transfer in transit through the territory of a foreign country, the Minister of Justice may request the foreign country to approve the transit. |
| (2) | Where the Minister of Justice receives a request from a foreign country for approval for a transit escort that is necessary for public officials of the foreign country to transfer a person confined in a prison, etc. of the foreign country through the territory of the Republic of Korea, upon a final and conclusive judgment rendered in another foreign country, he/she may accept such request if deemed reasonable: Provided, That when no criminal act upon which the final and conclusive judgment is based constitutes any crime under the Acts of the Republic of Korea, he/she shall not accept such request. |
| (3) | Article 4 shall apply mutatis mutandis to requests for transit and approval under paragraphs (1) and (2) and to the receipt and transmission of related documents or notifications from and to foreign countries. |
Expenses incurred for incoming transfer, which are defrayed by the Republic of Korea in relation to an incoming sentenced person, shall be charged to the incoming sentenced person: Provided, That the Minister of Justice may grant the incoming sentenced person a reduction of or exemption from such expenses in consideration of his/her economic circumstances.
| Article 34 (Going through Prosecutor General) |
Where, pursuant to this Act, the Minister of Justice issues an order or sends documents to a chief prosecutor, etc. or a chief prosecutor, etc. makes a report or sends documents to the Minister of Justice, it shall go through the Prosecutor General.
ADDENDA
| (1) | (Enforcement Date) This Act shall enter into force on the date of its promulgation. |
| (2) | (Transitional Measures concerning Persons Serving Sentences in the Republic of Korea or Foreign Countries) This Act shall also apply to nationals of the Republic of Korea serving sentences in foreign countries and to foreigners serving sentences in the Republic of Korea at the time this Act enters into force. |
| (3) | (Transitional Measures concerning Sentenced Persons Subject to Outgoing Transfer Confined in Prisons, etc.) The wardens of the prisons, etc. in which sentenced persons subject to outgoing transfer are held in custody at the time this Act enters into force, shall without delay inform the sentenced persons subject to outgoing transfer of the substance of any treaty applicable to them. |
ADDENDA <Act No. 8728, Dec. 21, 2007>
Article 1 (Enforcement Date)
This Act shall enter into force one year after the date of its promulgation.
Articles 2 through 6 Omitted.
ADDENDUM <Act No. 9521, Mar. 25, 2009>
This Act shall enter into force on the date of its promulgation.
ADDENDA <Act No. 9819, Nov. 2, 2009>
Article 1 (Enforcement Date)
This Act shall enter into force six months after the date of its promulgation.
Articles 2 through 6 Omitted.
ADDENDUM <Act No. 10375, Jul. 23, 2010>
This Act shall enter into force three months after the date of its promulgation.
ADDENDA <Act No. 10538, Apr. 5, 2011>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation.
Article 2 (Transitional Measures concerning Duration of Sentences of Imprisonment to be Enforced)
Notwithstanding the amended provisions of the proviso to Article 16 (1), the previous provisions shall apply to the duration of a sentence of imprisonment to be enforced against a sentenced person subject to incoming transfer surrendered to the Republic of Korea pursuant to Article 14 (2) before this Act enters into force.
ADDENDA <Act No. 11690, Mar. 23, 2013>
Article 1 (Enforcement Date)
| (1) | This Act shall enter into force on the date of its promulgation. |
Articles 2 through 7 Omitted.