HABEAS CORPUS ACT
Act No. 8724, Dec. 21, 2007
Amended by Act No. 10364, jun. 10, 2010
Act No. 11005, Aug. 4, 2011
Act No. 14972, Oct. 31, 2017
The purpose of this Act is to protect fundamental human rights guaranteed to all citizens by the Constitution of the Republic of Korea, by establishing the procedure of habeas corpus relief for individuals unduly deprived of their personal liberty by an illegal administrative disposition or confinement in private facilities.
| (1) | The term "inmate" in this Act means any person held, protected or confined against his/her free will in any medical facility, welfare facility, confinement facility or protective facility (hereinafter referred to as "confinement facility") managed by the State, a local government, a public corporation, an individual, a private organization, etc.: Provided, That this shall not include any person arrested and detained according to criminal procedure, any convict, nor any person who is protected in accordance with the Immigration Act. |
| (2) | The term "custodian" in this Act means the head or administrator of a confinement facility. |
| Article 3 (Habeas Corpus Petition) |
Where the confinement of an inmate is illegally initiated or an inmate remains confined even after the cause that gave rise to such confinement ceases to exist, such inmate or his/her legal representative, guardian, spouse, lineal blood relative, brother, sister, cohabitant, employer or an employee at the relevant confinement facility (referred to as "habeas corpus petitioner" hereinafter) may file a petition for habeas corpus with a court, as prescribed by this Act: Provided, That if any other procedure for habeas corpus relief is included in any other Act, this is applicable where it is obviously impossible to seek habeas corpus relief under such other Act within a reasonable period. <Amended by Act No. 10364, Jun. 10, 2010>
| Article 3-2 (Notice, etc. of Habeas Corpus Petition) |
| (1) | A custodian shall, prior to the confinement of an inmate, notify him/her that a petition for habeas corpus may be filed under Article 3. |
| (2) | Neither a custodian nor a habeas corpus petitioner (excluding an inmate) shall obstruct an inmate from filing any petition for habeas corpus under Article 3. |
[This Article Newly Inserted by Act No. 10364, Jun. 10, 2010]
The competent court for hearing of a petition for habeas corpus shall be a district court or its branch court which has jurisdiction over the address, residence or current location of the relevant inmate or confinement facility.
| Article 5 (Form of Petition) |
A petition for habeas corpus under Article 3 shall be filed in writing specifying the particulars listed in the following subparagraphs: | 1. | Name and address of a habeas corpus petitioner; |
| 2. | Name and address of a custodian, and other descriptions to identify such custodian; |
| 5. | Reasons why confinement is illegal; |
| Article 6 (Dismissal of Petition) |
| (1) | A court may dismiss a petition for habeas corpus in the following cases by court ruling: |
| 1. | Where a petition for habeas corpus is filed by a person who has no standing; |
| 2. | Where the requirements under Article 5 are not met; |
| 3. | Where it is obvious that habeas corpus relief can be sought according to the procedure for habeas corpus provided for in any other Act; |
| 4. | Where a petition for habeas corpus rejected pursuant to this Act or any other Act, is renewed. |
| (2) | In cases falling under any subparagraph of paragraph (1), a court may impose an order for correction of the deficiency, fixing a reasonable period therefor. |
| Article 7 (Transfer of Jurisdiction) |
A court may, ex officio or upon the request of a habeas corpus petitioner, transfer a petition case to another court deemed competent to hear such case.
| Article 8 (Hearing of Petitions) |
| (1) | A court shall, without delay, proceed to trial to hear a petition for habeas corpus, the necessity for continued confinement, the legality of confinement, etc., except in the case of its dismissal. |
| (2) | A court may, if deemed necessary, seek opinions from a doctor from a department of mental health science, psychologist, social welfare scholar or any other related professional, etc. on the mental and psychological conditions and the status of confinement of an inmate <Amended by Act No. 11005, Aug. 4, 2011> |
| Article 9 (Temporary Release, etc. from Confinement) |
| (1) | Where a court deems that an urgent need exists to avoid any possible human injury, etc. during an inmate's continued confinement, it may temporarily release the inmate from confinement, ex officio or upon the request of a habeas corpus petitioner by court ruling. |
| (2) | A court shall, prior to the decision under paragraph (1), pledge the inmate to answer summons of the court at any time, and may impose necessary conditions on the inmate with respect to his/her temporary release from confinement. |
| (3) | A court may revoke a decision under paragraph (1) if the inmate does not appear on a date for his/her trial or fails to comply with any condition imposed pursuant to paragraph (2). In such cases, if deemed unreasonable to confine the inmate in the former confinement facility, the court may remand the inmate to detain him/her in any other confinement facility of the same kind or a similar type. |
| Article 10 (Date for Examination) |
| (1) | A court shall appoint a date for examination of a petition for habeas corpus and summon the relevant habeas corpus petitioner and inmate on the date so appointed, except in cases where such petition is dismissed. |
| (2) | A court may, if deemed necessary, require an inmate and other related persons to appear on the date of examination under paragraph (1). |
| (3) | A custodian shall submit a written return specifying the following matters before the date of examination and allow the relevant inmate to appear in court on the date of examination, as required by the court: |
| 1. | Name and address of the inmate, and other descriptions to identify the inmate; |
| 2. | Date and place of confinement of the inmate; |
| 4. | Reasons for continued confinement and the expected date of termination of the confinement; |
| 5. | Other matters relating to confinement. |
| Article 11 (Protection of Inmates) |
If deemed necessary to protect an inmate, a court may, by court ruling, order a custodian to transfer the inmate from the existing confinement facility to any such other confinement facility of the same kind or a similar type as the court deems appropriate.
| Article 12 (Opening of Hearing to the Public and Appointment of Court-Appointed Counsel) |
| (1) | A hearing shall be conducted in open court: Provided, That if deemed necessary to protect an inmate, such hearing may be closed to the public by court ruling. |
| (2) | An inmate or a habeas corpus petitioner may designate his/her counsel. If a habeas corpus petitioner, etc. is unable to designate his/her counsel due to poverty or other cause, the court shall ex officio make an appointment of counsel in the absence of intent to the contrary clearly expressed by the habeas corpus petitioner, etc.: Provided, That this shall not apply where the habeas corpus petition is found to be manifestly groundless. |
| (1) | If a court deems that a petition for habeas corpus is well-grounded as a result of its hearing, it shall order the relevant inmate released immediately from confinement by court ruling. |
| (2) | A court shall reject a petition for habeas corpus if it is found to be groundless. In such cases, if a person has the relevant inmate in his/her custody pursuant to Article 9 (3) or 11, the court shall order such person to transfer custody of the inmate to the relevant custodian. |
| Article 14 (Charging of Costs) |
A court may charge all or some of costs incurred for trial of a petition for habeas corpus to the relevant habeas corpus petitioner or custodian.
A habeas corpus petitioner or custodian, who is dissatisfied with a ruling under Article 13, may make an immediate complaint against such ruling within seven days of the ruling: Provided, That no immediate complaint shall have the effect to suspend the execution. <Amended by Act No. 14972, Oct. 31, 2017> [This Article, which was determined to be unconstitutional by the Constitutional Court on September 24, 2015, was amended by Act No. 14972, promulgated on October 31, 2017]
| Article 16 (Prohibition of Reconfinement) |
No person who is released from confinement pursuant to this Act shall be reconfined on the same ground as that presented in the previous habeas corpus petition.
| Article 17 (Supreme Court Regulations) |
Other necessary matters regarding the hearing and trial of habeas corpus petitions shall be prescribed by Supreme Court Regulations.
| Article 18 (Penalty Provisions) |
| (1) | A custodian who falsely prepares or refuses to submit a written return under Article 10 (3) shall be punished by imprisonment with labor for not more than one year, by suspension of qualification for not more than three years, or by a fine not exceeding ten million won. <Amended by Act No. 10364, Jun. 10, 2010> |
| (2) | A person who obstructs an inmate from filing a petition for habeas corpus in violation of Article 3-2 (2) shall be punished by imprisonment with labor for not more than one year or by a fine not exceeding ten million won. <Newly Inserted by Act No. 10364, Jun. 10, 2010> |
| Article 19 (Administrative Fines, etc. for Failure to Appear in Court on Date of Examination) |
| (1) | If a custodian fails to appear in court on the date for examination without a justifiable ground, the court may impose upon him/her an administrative fine not exceeding five million won by court ruling. |
| (2) | If a custodian fails to appear in court without a justifiable ground in spite of the imposition of an administrative fine under paragraph (1), the court shall detain him/her for a period of seven days or less by court ruling. |
| Article 20 (Administrative Fines) |
| (1) | A person who, in violation of Article 3-2 (1), fails to give notice of the opportunity to file a petition for habeas corpus shall be subject to an administrative fine not exceeding five million won. |
| (2) | Administrative fines under paragraph (1) shall be imposed and collected by the Minister of Justice. |
[This Article Newly Inserted by Act No. 10364, Jun. 10, 2010]
ADDENDUM
This Act shall enter into force six months after the date of its promulgation.
ADDENDUM <Act No. 10364, Jun. 10, 2010>
This Act shall enter into force three months after the date of its promulgation.
ADDENDA <Act No. 11005, Aug. 4, 2011>
Article 1 (Enforcement Date)
This Act shall enter into force one year after the date of its promulgation. (Proviso Omitted.)
Articles 2 through 4 Omitted.
ADDENDA <Act No. 14972, Oct. 31, 2017>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation.
Article 2 (Special Cases concerning Immediate Complaints)
Any inmate against whom a ruling is made under Article 13 as at the time this Act enters into force may make an immediate complaint within seven days from the date this Act enters into force, notwithstanding the amended provisions of Article 15.