CHAPTER I GENERAL PROVISIONS
The purpose of this Act is to enhance international cooperation in cracking down crime by prescribing the scope, procedures, etc. of extradition.
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
The definitions of terms used in this Act shall be as follows:
| 1. | The term "extradition treaty" means a treaty, convention, or any other agreement on extradition, concluded between the Republic of Korea and a foreign state; |
| 2. | The term "Requesting State" means a state that requests the extradition of an offender; |
| 3. | The term "extraditable offense" means an offense for which extradition is requested; |
| 4. | The term "offender" means a person who is being investigated or proceeded against for an extraditable offense, or has been convicted of an extraditable offense in the Requesting State; |
| 5. | The term "provisional arrest" means arresting and detaining an offender pending receipt of an extradition request, when it is believed the offender may flee or when there are other urgent needs. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 3 (Exclusive Jurisdiction over Extradition Cases) |
The Seoul High Court and the Seoul High Prosecutor's Office shall have exclusive jurisdiction over cases involving extradition reviews and extradition requests provided for in this Act.
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 3-2 (Relations with Extradition Treaty) |
If an extradition treaty contains provisions contrary to the provisions in this Act, the extradition treaty shall prevail.
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
This Act shall apply even in the absence of an extradition treaty if the Requesting State assures that it will grant extradition for offenses of the same or similar kind as those for which it requests extradition.
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
CHAPTER II EXTRADITION OF CRIMINALS TO FOREIGN STATES
SECTION 1 Causes for and Restrictions on Extradition
| Article 5 (Principle of Extradition) |
Pursuant to the provisions of this Act, any offender who is in the territory of the Republic of Korea may be extradited to the Requesting State upon the request of the Requesting State for the purpose of prosecution, trials, or punishment.
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 6 (Extraditable Offenses) |
Extraditable offenses shall be limited to offenses that are punishable under the Acts of both the Republic of Korea and the Requesting State by death, life imprisonment, life imprisonment without prison labor, imprisonment for not less than one year, or imprisonment without prison labor for not less than one year.
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 7 (Reasons for Mandatory Refusal of Extradition) |
Extradition shall not be granted in cases falling under any of the following subparagraphs:
| 1. | The prescriptive period for the public prosecution or for the execution of sentence has lapsed under either the Acts of the Republic of Korea or the Requesting State; |
| 2. | The person sought is being tried, has been convicted or acquitted in the Republic of Korea in respect of the conduct for which extradition is requested; |
| 3. | There is no probable cause that the person sought committed the offense for which the extradition is requested: Provided, That this shall not apply if the person sought is convicted of the offense in the Requesting State; |
| 4. | It is believed that the offender might be punished or treated unfairly based on his/her race, religion, nationality, sex, political belief, or membership in a certain association. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 8 (Refusal of Extradition in Cases of Political Offenses, etc.) |
| (1) | No offender shall be extradited if the offense is a political offense or is related to a political offense: Provided, That this shall not apply to cases falling under any of the following subparagraphs: |
| 1. | The offense inflicts death or bodily harm, or threatens to do so on the Head of State or Government or a member of his/her family; |
| 2. | The Republic of Korea has the obligation pursuant to a multilateral treaty to exercise jurisdiction over the offender or to extradite the offender; |
| 3. | The offense inflicts death or bodily harm on many people, threatens to do so, or creates a danger of doing so. |
| (2) | No person shall be extradited if it is believed that the extradition is requested in order to try or punish the person for another offense of a political nature. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 9 (Reasons for Discretionary Refusal of Extradition) |
Extradition may be denied in cases falling under any of the following subparagraphs:
| 1. | The offender is a citizen of the Republic of Korea; |
| 2. | All or part of the offense has been committed in the territory of the Republic of Korea; |
| 3. | The offender is being proceeded against for an offense other than the extraditable offense in a court of the Republic of Korea, or the offender has been sentenced and has not completed his/her sentence nor been exempted from such sentence; |
| 4. | The offender has been tried and punished for the extraditable offense in a third state (referring to a foreign state other than the requesting one; hereinafter the same shall apply) or has received a final judicial decision not to punish him/her in a third state; |
| 5. | It is deemed inhuman to extradite the offender considering the nature of the offense, the situation that the offender is in, etc. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 10 (Assurance Not To Punish offenses Other Than the Offense for Which Extradition is Granted) |
No person shall be extradited without an assurance provided by the Requesting State that the person will not be punished for offenses other than that for which the extradition is granted, nor will the person be extradited to a third state, except cases falling under any of the following subparagraphs:
| 1. | If the person is to be punished for an offense that may be found guilty based solely on the facts of the offense for which the extradition is granted, or the person is to be punished for an offense committed after the extradition; |
| 2. | If the person leaves the territory of the Requesting State after extradition and voluntarily returns to it; |
| 3. | If the person does not leave the territory of the Requesting State within forty-five days of the day the person is free to leave; |
| 4. | If the Republic of Korea agrees to it. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 10-2 (Measures Taken by Minister of Justice in Response to Request for Consent) |
If the Requesting State requests the Minister of Justice consent to punishing the offender for an offense other than the one for which extradition is granted, or to extraditing the offender once more to a third state, the Minister of Justice may approve such request if he/she deems it reasonable: Provided, That such request shall not be approved if the offense to be punished in the Requesting State or a third state falls under any subparagraph of Article 7 or Article 8. [This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
SECTION 2 Extradition Review Procedure
| Article 11 (Measures Taken by Minister of Foreign Affairs in Response to Extradition Request) |
When the Minister of Foreign Affairs receives a request for extradition from a Requesting State, he/she shall send a written extradition request and other relevant documents to the Minister of Justice. <Amended by Act No. 11690, Mar. 23, 2013>
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 12 (Order by Minister of Justice to Request Extradition Review) |
| (1) | When the Minister of Justice receives a written extradition request, etc. from the Minister of Foreign Affairs as prescribed in Article 11, he/she shall send such documents to the Chief Prosecutor of Seoul High Prosecutor's Office and order him/her to direct a public prosecutor under his/her control to request the Seoul High Court to conduct a review as to whether extradition should be granted (hereinafter referred to as "extradition review"): Provided, That this shall not apply if the extradition is not allowed by an extradition treaty or this Act, or it is deemed reasonable not to extradite the offender. <Amended by Act No. 11690, Mar. 23, 2013> |
| (2) | If the Minister of Justice does not issue an order to request the extradition review as prescribed in the proviso to paragraph (1), he/she shall notify the Minister of Foreign Affairs of such fact. <Amended by Act No. 11690, Mar. 23, 2013> |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 13 (Request for Extradition Review) |
| (1) | When a public prosecutor receives the order to request an extradition review from the Minister of Justice as prescribed in 12 (1), he/she shall request the court without delay to conduct the extradition review: Provided, That this shall not apply if the offender's location is unknown. |
| (2) | If an offender is arrested on the provisional arrest warrant under Article 20, the extradition review shall be requested within three days after the arrest. |
| (3) | The request for an extradition review shall be made in writing and accompanied by relevant documents. |
| (4) | When a public prosecutor has made a request for an extradition review, he/she shall send a duplicate of the request to the offender. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 14 (Extradition Review by Court) |
| (1) | When a court receives the request for an extradition review under Article 13, it shall begin the extradition review without delay. |
| (2) | If the offender is in custody on a provisional arrest warrant, the court shall decide upon the extradition review within two months of the day when the offender was put into custody. |
| (3) | The offender has the right to be assisted by counsel for the extradition review. |
| (5) | The court shall give the offender and his/her counsel an opportunity to state their opinions before deciding upon the extradition review: Provided, That this shall not apply if the court decides to reject the request for the extradition review or to refuse the extradition. |
| (6) | If necessary, the court may examine a witness, order an appraisal, interpretation or translation during the extradition review. |
| (7) | Chapters XII through XIV and XVI of Part I of the Criminal Procedure Act shall apply mutatis mutandis to paragraph (6), unless it conflicts with the nature of the request for the review. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 15 (Judicial Decision) |
| (1) | The court shall decide upon the request for the extradition review according to the following classifications: |
| 1. | If the request for extradition review is unlawful or is cancelled: reject the request for the extradition review; |
| 2. | If it is deemed impossible to extradite the offender: refuse the extradition; |
| 3. | If it is deemed possible to extradite the offender: grant the extradition. |
| (2) | The court shall specify reasons for the decision under paragraph (1). |
| (3) | The decision made under paragraph (1) shall take effect after the public prosecutor is notified of the text of the decision. |
| (4) | When the court has made a decision under paragraph (1), it shall send duplicates of the written decision to the public prosecutor and the offender without delay and return the relevant documents to the public prosecutor. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 15-2 (Consent to Extradition of Offender) |
| (1) | If the offender consents to the extradition to the Requesting State, the court shall promptly make a decision under Article 15. In this case, the court shall not refuse the extradition on the ground of Article 9. |
| (2) | The consent under paragraph (1) shall be submitted in writing to the court, and the court shall confirm whether it is based on the true intention of the offender. |
| (3) | When the court decides according to paragraph (1), the Minister of Justice shall promptly decide whether to issue the order under Article 34 (1). |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 16 (Concurrent Requests for Extradition) |
| (1) | If two or more states request the extradition of the same offender either for the same offense or for different offenses, the Minister of Justice shall determine to which state the offender will be surrendered and, if necessary, consult with the Minister of Foreign Affairs. <Amended by Act No. 11690, Mar. 23, 2013> |
| (2) | When making a decision under paragraph (1), the Minister of Justice shall consider the date, time and place of the offenses, the gravity of the offenses, the date of each request, and the nationality and residence of the offender, etc. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 17 (Surrender of Property) |
| (1) | At the request of a public prosecutor, the court may permit surrendering to the Requesting State all items that are found in the Republic of Korea, if the items are produced or acquired through the extraditable offense, or may be used as evidence. The same shall apply when the extradition cannot be effected due to the death, disappearance, or escape of the person sought. |
| (2) | Any seizure of or search for items to be transferred to the Requesting State under paragraph (1) shall be carried out with a seizure or search warrant issued by a judge of the Seoul High Court (hereinafter referred to as the "judge") at the request of a public prosecutor. |
| (3) | Chapter X of Part I of the Criminal Procedure Act shall apply mutatis mutandis to paragraph (2) unless it conflicts with the nature of the seizure or search under paragraph (2). |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 18 (Cancellation of Order to Request Extradition Review) |
| (1) | If, after sending documents in accordance with Article 11, the Minister of Foreign Affairs is notified by the Requesting State that it withdraws the extradition request, he/she shall notify the Minister of Justice of such fact. <Amended by Act No. 11690, Mar. 23, 2013> |
| (2) | If, after issuing the order to request an extradition review in accordance with the main sentence of Article 12 (1), the Minister of Justice is notified as provided for in paragraph (1) by the Minister of Foreign Affairs, or the proviso to Article 12 (1) becomes applicable, he/she shall cancel the order. <Amended by Act No. 11690, Mar. 23, 2013> |
| (3) | If the order to request an extradition review is cancelled after the public prosecutor requested the extradition review under Article 13 (1), the public prosecutor shall cancel the request for an extradition review without delay and notify the offender of such fact without delay. |
| (4) | The cancellation of the request for an extradition review under paragraph (3) shall be made in writing. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
SECTION 3 Extradition Arrest of Criminal
| Article 19 (Issuance of Extradition Arrest Warrant) |
| (1) | When the Minister of Justice orders to request an extradition review as prescribed in Article 12 (1), the public prosecutor shall arrest the offender on an extradition arrest warrant: Provided, That this shall not apply if the offender has a settled residence and it is deemed that the offender will not flee. |
| (2) | The extradition arrest warrant shall be issued by a judge at the request of a public prosecutor. |
| (3) | The extradition arrest warrant shall contain the following and shall be signed and sealed by the judge: |
| 1. | Name, residence, and nationality of the offender; |
| 2. | Name of the Requesting State; |
| 3. | Name of the extraditable offense; |
| 4. | A brief statement of the facts of the case; |
| 5. | Place to take into custody and detain the offender; |
| 6. | Issue date, validity period, and a statement to the effect that if the period expires, the warrant shall not be executed and shall be returned. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 20 (Execution of Extradition Arrest Warrant) |
| (1) | The extradition arrest warrant shall be executed by a judicial police official under the direction of the public prosecutor. |
| (2) | If the offender is serving in the military, the public prosecutor may request the military prosecutor to execute the extradition arrest warrant. In this case, the extradition arrest warrant shall be executed by a military police official under the direction of the military prosecutor. <Amended by Act No. 13722, Jan. 6, 2016> |
| (3) | When the extradition arrest warrant is executed, it must be shown to the offender. |
| (4) | When a judicial police official, etc. arrests an offender, he/she shall inform the offender of the reason for the arrest and his/her right to retain counsel, and then promptly deliver the offender into the custody of the public prosecutor of the district public prosecutors' office or its branch office having jurisdiction where the offender is located. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 21 (Detention in Prison, etc.) |
When the public prosecutor takes the custody of the offender arrested on an extradition arrest warrant, he/she shall confirm that the offender is identical to the person stated on the warrant, and then detain him/her without delay in a prison, detention center, or any other place stated on the extradition arrest warrant.
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 22 (Review on Propriety of Extradition Arrest) |
| (1) | Any offender arrested on an extradition arrest warrant or his/her counsel, legal representatives, spouse, lineal relatives, brothers, sisters, family members, persons living together, or employer may request the court to conduct the review on the legality of the arrest. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 23 (Suspension of Execution and Loss of Effect of Extradition Detention) |
| (1) | If reasonable, the public prosecutor may suspend the execution of detention by putting the offender arrested on an extradition arrest warrant into the custody of his/her relative, a protection institution, or other proper person or by restricting the residence of the criminal. |
| (2) | The public prosecutor may cancel the suspension of the execution of detention, if: |
| 1. | The offender has fled; |
| 2. | There is sufficient reason to believe that the offender might flee; |
| 3. | The offender violates the residency restrictions or other conditions as determined by the public prosecutor. |
| (3) | When the writ of surrender under Article 36 is issued for an offender by the Minister of Justice, the public prosecutor shall cancel the suspension of the execution of detention without delay. |
| (4) | When the public prosecutor has cancelled the suspension of the execution of detention under paragraph (2) or (3), he/she shall have a judicial police official detain the criminal. |
| (5) | When the offender is detained because of the cancellation under paragraph (3), the public prosecutor shall report such fact to the Minister of Justice. |
| (6) | The extradition arrest warrant shall no longer be effective in cases falling under any of the following subparagraphs: |
| 1. | The request for an extradition review is rejected or the extradition is denied as prescribed in Article 15 (1) 1 or 2; |
| 2. | The request for an extradition review is cancelled as prescribed in Article 18 (3); |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 24 (Measures Taken by Minister of Foreign Affairs in Response to Request for Provisional Arrest) |
When the Minister of Foreign Affairs receives a request for the provisional arrest of an offender from the Requesting State, he/she shall send a written request for the provisional arrest and other relevant documents to the Minister of Justice. <Amended by Act No. 11690, Mar. 23, 2013>
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 25 (Measures Taken by Minister of Justice with Respect to Provisional Arrests) |
When the Minister of Justice receives the documents under Article 24 and deems the provisional arrest reasonable, he/she shall forward such documents to the Chief Prosecutor of the Seoul High Prosecutor's Office and order him/her to direct a public prosecutor under his/her control to arrest the offender: Provided, That the provisional arrest shall not be ordered in cases falling under any of the following subparagraphs: | 1. | There is no sufficient reason to believe that a warrant that justifies the arrest has been issued in the Requesting State, or that a penalty has been imposed; |
| 2. | There is no sufficient reason to believe that the Requesting State has assured that it would make a request for the extradition. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 26 (Arrest by Provisional Arrest Warrant) |
| (1) | When the Minister of Justice orders the provisional arrest as prescribed in Article 25, the public prosecutor shall arrest the offender on a provisional arrest warrant. |
| (2) | The Articles 19 (2) and (3), 20 through 22 and 23 (1) through (4) shall apply mutatis mutandis to the issuance of the provisional arrest warrant and the arrest on the warrant. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 27 (Discharge of Offender Arrested on Provisional Arrest Warrant) |
| (1) | If the Minister of Justice decides not to order the request of an extradition review for an offender arrested on a provisional extradition warrant as prescribed in the proviso to Article 12 (1), he/she shall order the Chief Prosecutor of the Seoul High Prosecutor's Office to direct a public prosecutor under his/her control to discharge the offender from custody and shall also notify such fact to the Minister of Foreign Affairs. <Amended by Act No. 11690, Mar. 23, 2013> |
| (2) | The public prosecutor shall, upon receiving a release order from the Minister of Justice as prescribed in paragraph (1), notify the offender of the fact without delay and discharge the offender from custody. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 28 (Notification to Offender) |
| (1) | Upon receiving the order to request an extradition review from the Minister of Justice as prescribed in Article 12 (1), the public prosecutor shall notify the offender arrested on an urgent arrest warrant of such fact in writing without delay. |
| (2) | If a notification under paragraph (1) is made to an offender arrested on a provisional arrest warrant, such arrest shall be considered to be based on an extradition arrest warrant, and in applying Articles 13 (2) and 14 (2), the offender shall be considered to have been arrested on an extradition arrest warrant at the time such notification is made. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 29 (Release at Time of Notification of No Request for Extradition) |
| (1) | If, after sending the documents in accordance with Article 24, the Minister of Foreign Affairs receives a notification that the Requesting State will not seek the surrender of the offender, he/she shall notify the Minister of Justice of such fact without delay. <Amended by Act No. 11690, Mar. 23, 2013> |
| (2) | Upon receiving notification as prescribed in paragraph (1), the Minister of Justice shall order the Chief Prosecutor of the Seoul High Prosecutor's Office to direct a public prosecutor under his/her control to discharge the offender from custody. |
| (3) | Upon receiving a discharge order from the Minister of Justice as prescribed in paragraph (2), the public prosecutor shall notify the offender of such fact without delay and discharge the offender from custody. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 30 (Measures Taken by Public Prosecutor) |
When the Minister of Justice does not issue an order to request an extradition review for an offender detained on a provisional arrest warrant within two months after he/she is arrested, the public prosecutor shall release him/her and report the fact to the Minister of Justice.
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 31 (Application Mutatis Mutandis of Extradition Arrest to Provisional Arrest) |
| (1) | If the notification under Article 28 (1) is made to an offender for whom the execution of detention is suspended after his/her arrest on a provisional arrest warrant, the suspension of detention on the provisional arrest warrant shall be regarded as the suspension of detention under Article 23 (1). |
| (2) | The provisional arrest warrant shall no longer be effective if: |
| 1. | the notification under Article 27 (2) or 29 (3) is made to the offender; |
| 2. | no notification is made in accordance with Article 28 (1) within two months of the day the offender is arrested on a provisional arrest warrant. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
SECTION 4 Extradition of Offender
| Article 32 (Release of Offender) |
| (1) | The public prosecutor shall discharge the offender from custody without delay, and report the fact to the Minister of Justice in cases falling under any of the following subparagraphs: |
| 1. | An order by the Minister of Justice to request an extradition review is cancelled as prescribed in Article 18 (2); |
| 2. | The court decides to reject the request for an extradition review; |
| 3. | The court decides to refuse the extradition. |
| (2) | When an offender is discharged as prescribed in paragraph (1), the Minister of Justice shall notify the Minister of Foreign Affairs of such fact. <Amended by Act No. 11690, Mar. 23, 2013> |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 33 (Sending Duplicate of Decision, etc.) |
When the public prosecutor receives a duplicate of the decision as prescribed in Article 15 (4), he/she shall send the duplicate along with other relevant documents to the Minister of Justice without delay. [This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 34 (Order, etc. of Minister of Justice Regarding Extradition) |
| (1) | When the court decides to grant extradition as prescribed in Article 15 (1) 3, the Minister of Justice shall order the Chief Prosecutor of the Seoul High Prosecutor's Office to direct a public prosecutor under his/her control to surrender the offender: Provided, That the foregoing shall not apply if the Requesting State withdraws the request for extradition or if extraditing the offender is deemed highly inappropriate considering the interests of the Republic of Korea. |
| (2) | If the Minister of Justice decides not to extradite an offender as prescribed in the proviso to paragraph (1), he/she shall order the Chief Prosecutor of the Seoul High Prosecutor's Office to direct a public prosecutor under his/her control to discharge the offender from custody and shall also notify the Minister of Foreign Affairs of such fact. <Amended by Act No. 11690, Mar. 23, 2013> |
| (3) | When the Minister of Justice orders the discharge as prescribed in paragraph (2), the public prosecutor shall notify the offender of such fact without delay and discharge the offender from custody. |
| (4) | After the notice under paragraph (3) is given, the Minister of Justice may not order the extradition of the same offender: Provided, That the foregoing shall not apply if, while the extradition treaty contains specific provisions with regard to subparagraph 3 of Article 9, it is notified that the offender shall not be extradited because the offender is being tried or is serving a sentence in the Republic of Korea for an offense other than the extraditable offense, and later such reasons become not applicable to the offender. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 35 (Place of and Time Limit for Surrender) |
| (1) | The offender shall be surrendered, pursuant to the extradition order by the Minister of Justice, at the prison or detention center where the offender is detained or at any other place that the Minister of Justice designates. |
| (2) | The time period for the surrender shall be 30 days from the day the extradition order is issued. |
| (3) | Notwithstanding paragraph (2), if the offender is not in custody at the time the extradition order was issued, the time period for the surrender shall be 30 days from the day the offender is arrested on the writ for executing surrender, or is rearrested after the suspension of detention is cancelled. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 36 (Sending of Writ of Surrender and Writ of Permission for Surrender) |
| (1) | When the Minister of Justice issues an extradition order as prescribed in Article 34 (1), he/she shall issue a writ of surrender and send it to the director of the Seoul High Prosecutors' Office and issue a writ of permission for surrender and send it to the Minister of Foreign Affairs. <Amended by Act No. 11690, Mar. 23, 2013> |
| (2) | The writ of surrender and writ of permission for surrender shall contain the following subparagraphs and shall be signed and sealed by the Minister of Justice: |
| 1. | Name, residence, and nationality of the offender; |
| 2. | Name of the Requesting State; |
| 3. | Name of the extraditable offense; |
| 4. | A brief statement of the facts of the case; |
| 5. | Place of the surrender; |
| 6. | Deadline for the surrender; |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 37 (Arrest for Surrender) |
| (1) | When the public prosecutor receives the writ of surrender from the Minister of Justice as prescribed in Article 36, he/she shall deliver the writ of surrender to the head of the prison or detention center or any other place stated on the extradition arrest warrant, where the offender is detained or had been detained until the suspension of the detention, and direct the head to surrender the offender. |
| (2) | If the offender is not in custody in the case of paragraph (1), the public prosecutor shall issue a writ of execution of surrender and arrest the offender. |
| (3) | The writ of execution of surrender shall contain the following subparagraphs and shall be signed and sealed by the public prosecutor: |
| 1. | Name, residence and nationality of the offender; |
| 2. | Name of the Requesting State; |
| 3. | Name of the extraditable offense; |
| 4. | A brief statement of facts of the case; |
| 5. | Place to take into custody and detain the offender; |
| (4) | Articles 20 and 21 shall apply mutatis mutandis to the arrest of the offender on the writ of execution of surrender. |
| (5) | When an offender is detained in a prison, detention center, or other place stated on the writ of execution of surrender, the public prosecutor shall deliver the writ of surrender to the head of the relevant prison, etc. direct the head to surrender the offender and report such fact to the Minister of Justice. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 38 (Notification by Minister of Justice) |
Upon receiving the report under Article 23 (5) or 37 (5), the Minister of Justice shall notify the Minister of Foreign Affairs without delay of the fact that the offender has been placed where he/she is to be surrendered, and the deadline for the surrender. <Amended by Act No. 11690, Mar. 23, 2013> [This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 39 (Notification to Requesting State) |
| (1) | Upon receiving the writ of permission for surrender from the Minister of Justice as prescribed in Article 36, the Minister of Foreign Affairs shall send it to the Requesting State without delay. <Amended by Act No. 11690, Mar. 23, 2013> |
| (2) | Upon receiving a notification from the Minister of Justice as prescribed in Article 38, the Minister of Foreign Affairs shall notify the Requesting State of such fact without delay. <Amended by Act No. 11690, Mar. 23, 2013> |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 40 (Extradition by Head of Prison, etc.) |
| (1) | After receiving the direction as prescribed in Article 37 (1) or (5), the head of a prison, detention center, or any other place for detention that is stated on the extradition arrest warrant or the writ of execution of surrender shall surrender the offender when a public official from the Requesting State demands so by presenting the writ of permission for surrender. |
| (2) | If no request is made for the surrender of an offender as prescribed in paragraph (1) until after the deadline for the surrender, the public prosecutor shall discharge the offender and report such fact to the Minister of Justice. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 41 (Escort of Offender to Requesting State) |
The public official from the Requesting State who takes over the offender as prescribed in Article 40 (1), shall escort the offender to the requesting state without delay. [This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
CHAPTER III REQUEST FOR EXTRADITION FROM OVERSEAS
| Article 42 (Extradition Request by Minister of Justice) |
| (1) | If an offender who has violated the Acts of the Republic of Korea is located in a foreign state, the Minister of Justice may request the relevant foreign state to extradite or provisionally arrest the offender. |
| (2) | If deemed necessary, the Minister of Justice may order a suitable chief prosecutor of a prosecutor's office or a branch office to take measures necessary for requesting a foreign state to extradite or provisionally arrest an offender. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 42-2 (Measures Taken by Chief Prosecutor of Public Prosecutor's Office, etc.) |
| (1) | Upon receiving an order as prescribed in Article 42 (2), the chief prosecutor of a prosecutor's office or a branch office shall direct a public prosecutor under his/her control to take necessary measures such as reviewing, drafting, supplementing relevant documents. |
| (2) | Upon receiving a direction as prescribed in paragraph (1), the public prosecutor shall promptly carry out the direction and shall submit the results along with relevant documents to the Minister of Justice. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 42-3 (Proposal by Public Prosecutor for Requesting Extradition of Offender) |
| (1) | If a public prosecutor deems it reasonable, he/she may propose that the Minister of Justice request a foreign state to extradite or provisionally arrest an offender. |
| (2) | In the case of paragraph (1), the public prosecutor shall attach documents that contain matters designated by a relevant extradition treaty and the Minister of Justice. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 42-4 (Request for Consent of Foreign State) |
| (1) | If the Minister of Justice deems it necessary to punish the offender who has been surrendered by a foreign state for an offense other than the offense for which the extradition was granted, he/she may request the foreign state to consent to such punishment. |
| (2) | If a public prosecutor deems it necessary to request the consent under paragraph (1), he/she may propose that the Minister of Justice request such consent. In this case, Article 42-3 (2) shall apply mutatis mutandis. |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 43 (Sending of Written Request for Extradition, etc.) |
When the Minister of Justice has decided to request the extradition or provisional arrest of an offender or to request consent as prescribed in Articles 42 and 42-4, he/she shall send a written request for extradition, etc. along with other relevant documents to the Minister of Foreign Affairs. <Amended by Act No. 11690, Mar. 23, 2013> [This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 44 (Measures Taken by Minister of Foreign Affairs and Trade) |
Upon receiving the written request for extradition etc. from the Minister of Justice as prescribed in Article 43, the Minister of Foreign Affairs shall send such documents to the relevant foreign state. <Amended by Act No. 11690, Mar. 23, 2013> [This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
CHAPTER IV SUPPLEMENTARY PROVISIONS
| Article 45 (Approval for Transit) |
| (1) | If a foreign state seeks approval from the Minister of Justice through a diplomatic channel so that the state's public official can transport trough the territory of the Republic of Korea a person surrendered by another foreign state, the Minister of Justice may approve such transit if he/she deems it reasonable: Provided, That the foregoing shall not apply in cases falling under any of the following subparagraphs: |
| 1. | The act for which the person is extradited does not constitute a crime under the Acts of the Republic of Korea; |
| 2. | The act for which the person is extradited is of a political nature or it is believed that the extradition is requested in order to try or punish the person for an offense other than the one for which the extradition is granted; |
| 3. | The request for transit is not based on an extradition treaty and the person for whom the transit is requested is a national of the Republic of Korea. |
| (2) | The Minister of Justice shall consult with the Minister of Foreign Affairs before deciding upon the approval under paragraph (1). <Amended by Act No. 11690, Mar. 23, 2013> |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 45-2 (Request for Approval for Transit) |
| (1) | If it is necessary to pass through the territory of a third state in order to transport an offender from a foreign state to the Republic of Korea, the Minister of Justice may request the third state to approve such transit. |
| (2) | Articles 43 and 44 shall apply mutatis mutandis to the request for an approval under paragraph (1). |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
If there is no agreement with the Requesting State on the expenses of extradition, the Republic of Korea shall pay all the expenses incurred in the territory of the Republic of Korea until handing the offender over to the public official from the Requesting State, such as expenses incurred by detaining the offender, and the Requesting State shall pay all the expenses incurred thereafter.
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 47 (Going through Prosecutor General) |
Whenever the Minister of Justice issues orders to the Chief Prosecutor, etc. and whenever the chief prosecutor of a prosecutor's office or a branch office, or a public prosecutor submits proposals, reports, or documents to the Minister of Justice, they shall do so by way of the Prosecutor General.
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 48 (Request for Extradition for Offenses Committed before an Extradition Treaty in Force) |
Except as otherwise provided for by the extradition treaty, this Act shall apply to any extradition request for offenses committed before the extradition treaty takes effect.
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 49 (Supreme Court Regulations) |
Matters regarding the procedures of the extradition review by court, the issuance of extradition arrest warrants and provisional arrest warrants, etc. shall be governed by the Supreme Court Regulations.
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 50 (Enforcement Decree) |
Matters necessary for the enforcement of this Act, other than those governed by the Supreme Court Regulations as prescribed in Article 49, shall be governed by the Presidential Decree. [This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
| Article 51 (Special Provisions for Immigration) |
| (1) | Notwithstanding the provisions of Articles 3, 6 (1), 7, 12, 13 and 28 of the Immigration Control Act, if the offender fails to possess or presents a valid passport and if the Minister of Justice deems it especially necessary, he/she may let the offender use extradition-related documents such as the writ of surrender, writ of permission for surrender or any writ regarding extradition order issued by a foreign state in order to clear immigration and enter or leave the Republic of Korea. |
| (2) | If the offender to be extradited to a foreign state is a national of the Republic of Korea, is obligated to military service, and is subject to an overseas travel permit under Article 70 of the Military Service Act, the Minister of Justice shall consult with the Minister of National Defense before the offender leaves the Republic of Korea as prescribed in paragraph (1). |
[This Article Wholly Amended by Act No. 10202, Mar. 31, 2010]
ADDENDA
| (1) | (Enforcement Date) This Act shall enter into force on the date of its promulgation. |
| (2) | (Transitional Measures) This Act shall also be applicable to any requests for extradition and any approval of transit convoy of a criminal with respect to an extraditable crime committed before this Act enters into force. |
ADDENDA <Act No. 7427, Mar. 31, 2005>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation: Provided, That …
Articles 2 through 7 Omitted.
ADDENDUM <Act No. 7727, Dec. 14, 2005>
This Act shall enter into force on the date of its promulgation.
ADDENDA <Act No. 8730, Dec. 21, 2007>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation: Provided, That …
Articles 2 through 4 Omitted.
ADDENDUM <Act No. 10202, Mar. 31, 2010>
This Act shall enter into force on the date of its promulgation.
ADDENDA <Act No. 11690, Mar. 23, 2013>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation.
Articles 2 through 7 Omitted.
ADDENDA <Act No. 13722, Jan. 6, 2016>
Article 1 (Enforcement Date)
This Act shall enter into force one year and six months after its promulgation. (Proviso Omitted)
Articles 2 through 10 Omitted.