SOCIAL PROTECTION ACT

Article 1(Purpose) #

The purpose of this Act is to provide for means to facilitate the return to the society of the offenders who are considered to present a danger of recidivism and need special training, rehabilitation and treatment, and also to safeguard community therefrom, by sentencing them under protective disposition.

Article 2(Persons Subject to Protective Disposition) #

Persons subject to protective disposition under this Act(hereinafter referred to as “protective subjects”) shall be as follows: <Amended by Act No. 4089, Mar. 25, 1989; Act No. 5179, Dec. 12, 1996>

1. Persons who have been sentenced to more than one penalty or who have committed not less than one offense (excluding those who have committed offense by negligence); and

2. Mentally ill persons, drug addicts and alcohol addicts who have committed offense.

Article 3(Categories of Protective Disposition) #

Protective disposition shall have the following categories:

1. Protective custody;

2. Rehabilitative custody; and

3. Probation.

Article 4(Jurisdiction over Custody Cases) #

(1) The territorial jurisdiction for a custody case shall be the same as that for the criminal charge which are being tried or could have been tried concurrently with the custody case.

(2) The first trial jurisdiction for custody cases shall belong to the collegiate division of the District Court or the Branch Court. If the jurisdiction for the custody case is different from that for the criminal trial of the same subject for whom custody is applied, the former shall prevail.

Article 5(Protective Custody) #

A protective subject, who falls under any of the following subparagraphs, and is deemed to have a danger of repetition of an offense, shall be sentenced to protective custody:

1. When a person who has been sentenced two or more times for offences in the same or of a similar category to actual penalties of imprisonments without prison labor or heavier the total period of which is three years or more, has again committed an offence in the same or of a similar category as shown in the attached Table, after having completed, in whole or in part the last penalty, or having been exempted therefrom;

2. When a person is deemed to be a habitual offender because of his multiple commission of offences shown in the attached Table; and

3. When a person, who was sentenced to protective custody, has again committed an offence in the same or of a similar category shown in the attached Table, after having completed serving, in whole or in part the custody, or having been exempted therefrom.

[This Article Wholly Amended by Act No. 4089, Mar. 25, 1989]

Article 6(Definition of Actual Penalty and Offense in the Same or of Similar Category) #

(1) The term “actual penalty” referred to in Article 5 means imprisonment without prison labor or a heavier penalty which has been served, in whole or in part, or exempted from.

(2) The term “offenses in the same or of a similar category” referred to in Article 5 means offenses which have following relationships each other:

1. Offenses with the same name;

2. Offenses provided in the same chapter of the Criminal Act;

3. Offenses provided in the Criminal Act and an offense separately provided for an aggravated punishment;

4. Offenses provided in the same Act other than the Criminal Act;

5. Offenses provided in Acts other than the Criminal Act and an offense separately provided for an aggravated punishment; and

6. Offenses which are considered to be in the same or of a similar category in view of comprehensive character of the offenses such as the nature, means, modus operandi, general tendencies and types of the offenses.

Article 7(Treatment During Protective Custody) #

(1) Any person sentenced to protective custody(hereinafter referred to as the “protective custody subject”) shall be subject to commitment to a protective custody facility for the purpose of custody and rehabilitation, and may also be made subject to vocational training or labor when deemed necessary for his return to the society: Provided, That labor may not be imposed without the consent of the protective custody subject.

(2) The chief of a protective custody facility may entrust with an appropriate agency the custody of the protective custody subject, when he finds it necessary for vocational training, labor and medical treatment and other measures for custody and rehabilitation. In this case, the entrusted agency shall be considered as a protective custody facility. <Amended by Act No. 5179, Dec. 12, 1996>

(3) Commitment to a protective custody facility shall not exceed seven years. <Newly Inserted by Act No. 4089, Mar. 25, 1989>

(4) Details concerning protective custody facilities and methods of the custody and rehabilitation, and other necessary matters as prescribed in paragraphs (1) and (2) shall be provided for by the Presidential Decree.

Article 8(Rehabilitative Custody) #

(1) A protective subject, who falls under either of the following subparagraphs and is deemed to have a danger of recidivism, shall be sentenced to a rehabilitative custody:

1. When a person who is mentally ill and is not punishable under the provisions of Article 10 (1) of the Criminal Act, or is eligible for remittance in penalty as provided in Article 10 (2) of the Criminal Act, has committed an offense punishable by imprisonment without prison labor or a heavier penalty; and

2. When a person who is addicted to, or has the habit of drinking, taking, inhaling, smoking, or injecting narcotics, intoxicating drugs, marijuana, alcohol or other materials which are likely to present danger of abuse or harmful effect, has committed an offense punishable by imprisonment without prison labor or a heavier penalty.

(2) Materials which are likely to present danger of abuse or harmful effect under paragraph (1) 2 shall be prescribed by the Presidential Decree.

[This Article Wholly Amended by Act No. 4089, Mar. 25, 1989]

Article 9(Treatment during Rehabilitative Custody) #

(1) A person who is sentenced to a rehabilitative custody(hereinafter referred to as the “rehabilitative custody subject”) shall be subject to commitment to a rehabilitative custody facility for treatment.

(2) Commitment to a rehabilitative custody facility shall continue until the rehabilitative custody subject is so cured that custody is no longer necessary and the Community Protection Committee has decided to terminate or suspend the custody. <Amended by Act No. 5179, Dec. 12, 1996>

(3) Rehabilitative custody facilities, the treatment process and other necessary matters as prescribed in paragraph (1) shall be prescribed by the Presidential Decree.

[This Article Wholly Amended by Act No. 4089, Mar. 25, 1989]

Article 10(Probation) #

(1) A protective subject shall be placed under probation, when he falls under either of the following subparagraphs: <Amended by Act No. 5179, Dec. 12, 1996>

1. When a protective custody subject is released on protective parole; or when released on criminal parole while serving a prison term imposed together with the protective custody, and the remaining prison term elapses without his parole being cancelled or nullified; or

2. When the rehabilitative custody is suspended or a rehabilitative custody subject is entrusted to his relative for treatment outside the rehabilitative custody facility.

(2) When the requirements provided for in the latter part of paragraph (1) 1 are met, it shall be deemed that the Community Protection Committee has decided to grant a protective parole.

(3) The period of probation shall be three years: Provided, That if a continuous probation is necessary for the person subject to probation pursuant to the provision of paragraph (1) 2, the period of probation may be extended, only once, for 3 years by the decision of the Community Protection Committee. <Amended by Act No. 5179, Dec. 12, 1996>

(4) The probation shall terminate even before the expiration of the period of probation if the Community Protection Committee decides to exempt the subject from the service of protective custody or to terminate the rehabilitative custody, or if a person subject to probation (hereinafter referred to as the “probationer”) is recommitted as a subjective of a protective custody or a rehabilitative custody(both of them shall be hereinafter collectively referred to as “custody”), or if a protective supervisee has to serve imprisonment without prison labor or a heavier penalty. <Newly Inserted by Act No. 5179, Dec. 12, 1996>

Article 11(Requirements of Probationer) #

(1) The probationer shall faithfully fulfill the requirements pursuant to the provision of Article 32 (2) of the Protection and Surveillance, etc. Act.

(2) The Community Protection Committee may separately provide for medical treatment and other additional requirements with consideration of the characteristics of the probationer.

[This Article Wholly Amended by Act No. 5179, Dec. 12, 1996]

Article 12(Investigation) #

(1) A prosecutor shall investigate the materials relevant in making a decision on a protective disposition while investigating a crime, when it is considered reasonably likely that the suspect should be subject to custody in view of his criminal record or mental illness, etc.

(2) A judicial police officer(including a special judicial police officer; hereinafter the same shall apply) shall conduct the investigation as prescribed in paragraph (1) under the direction of a prosecutor.

Article 13(Custody Warrant) #

(1) A prosecutor may place a protective subject under protective detention (including protective confinement and protective arrest; hereinafter the same shall apply) with a custody warrant applied for by the prosecutor and issued by a competent District court judge when it is considered necessary that the protective subject should be subject to custody and the protective subject falls under one of the following subparagraphs:

1. He has no established address;

2. There is a danger that he may destroy evidence in the case under investigation; or

3. He escapes or presents a danger of escape.

(2) A judicial police officer may place under protective detention a protective subject who falls under paragraph (1) with a custody warrant applied for by a prosecutor upon request of the judicial police officer and issued by a competent district court judge.

(3) The provisions of Articles 201 (2) through (4), 202 through 207 and 209 of the Criminal Procedure Act shall apply mutatis mutandis to the protective detention as prescribed in paragraphs (1) and (2).

(4) The provisions of Articles 94, 96, 208, and 214-2 of the Criminal Procedure Act shall not apply to protective subjects under protective detention.

Article 14(Custody Application) #

(1) A custody application shall be made by a prosecutor by filing a written application with the competent court. Copies of the custody application equal in number to that of the subjects for whom custody is applied, shall be attached to the custody application.

(2) The following matters shall be described on a custody application:

1. Name of the subject for whom custody is applied or other descriptions to identify the subject;

2. Grounds for the custody application;

3. Applicable legal provisions; and

4. Other matters provided by the Presidential Decree.

(3) The prosecutor may apply for custody of a person at any time before the first trial court renders a decision in a case prosecuted by him.

(4) The court which received a custody application shall without delay serve the subject for whom custody is applied or his attorney with a copy of the application: Provided, That the service shall be not later than 5 days before the first date of trial when the custody application is filed together with a public prosecution and not later than 5 days before the date of the next trial when a custody application is filed during the trial of a prosecuted case.

(5) The court may request the prosecutor to file a custody application when it considers it necessary to sentence a person to custody in view of the materials presented at the trial of a prosecuted case against him.

Article 15(Independent Custody Application) #

A prosecutor may request a custody application only, without instituting of public prosecution, when:

1. A suspect is not punishable because the person falls under Article 10 (1) of the Criminal Act;

2. There is no accusation or complaint concerning an offense for which an accusation or a complaint is required for filing prosecution, or the victim expressed his wish not to prosecute the offender or retracted his previous wish to prosecute the offender for an offense which cannot be prosecuted against the expressed wish of the victim; or

3. The prosecutor decides not to prosecute a suspect under the provisions of Article 247 (1) of the Criminal Procedure Act.

Article 16(Application for Custody and Effect of Warrant of Detention) #

When the prosecutor decides not to institute a public prosecution against a suspect detained under a warrant of detention, and files a custody application only, the warrant of detention shall continue to have effect as a custody warrant.

Article 17(Absence of Subject for whom Rehabilitative Custody is Applied) #

When a subject for whom a rehabilitative custody is applied is not able to be present at the trial due to mental illness as prescribed in Article 10 (1) of the Criminal Act, the court may hold the trial without his presence.

Article 18(Transfer to Criminal Trial Process) #

(1) When there is found clear evidence that a subject for whom rehabilitative custody is applied has no mental illness as provided in the provisions of Article 10 (1) of the Criminal Act after commencement of trial for the rehabilitative custody case in accordance with the provisions of subparagraph 1 of Article 15, the court shall transfer the case to a criminal trial process under the Criminal Procedure Act at the request of a prosecutor.

(2) In case of paragraph (1), public prosecution is considered to have been instituted at the time when the rehabilitative custody application was requested; the rehabilitative custody application shall have the same effect as an indictment; and any hearing taken before the transfer to the trial process shall have the same effect as one taken during the trial process. In this case, matters to be entered in an indictment may be changed in accordance with the provisions of Article 298 of the Criminal Procedure Act.

(3) When a custody application is filed after requesting an application for a summary order, the latter shall be tried according to the formal criminal procedure thereafter.

Article 19(Informing of Contents of Trial) #

When a trial procedure is commenced pursuant to the provisions of Article 18, the contents of trial, the proceedings of which are taken without presence of the subject concerned, shall be informed to him by reading the protocol of trial or by other appropriate means.

Article 20(Decision of Custody, etc.) #

(1) When the court finds, after the hearing, that a custody application has sufficient grounds, a sentence to custody shall be issued in the form of a decision. The custody application shall be dismissed in the form of a decision either when the application is found to be without sufficient grounds or when the subject for whom custody is applied is declared not guilty on grounds other than insanity or is sentenced to death or life imprisonment with or without prison labor in the accused case.<Amended by Act No. 4089, Mar. 25, 1989>

(2) The decision on a custody case and the decision on an accused case for the same offense shall be sentenced simultaneously : Provided, That this shall not apply when the custody application falls under the provisions of Article 15.

(3) The reasons for a decision issuing a sentence to custody shall specify the facts which satisfy the requirements of the sentence, the abstracts of the evidence and applicable provisions.

(4) When a protective subject satisfies both the requirements for a protective custody and for a rehabilitative custody, only a rehabilitative custody shall be sentenced. <Amended by Act No. 4089, Mar. 25, 1989>

(5) When an accused case falls under any of the conditions provided in each subparagraph of Article 326, subparagraphs 1 through 4 of Article 327, and each subparagraph of Article 328 (1)(except the latter part of subparagraph 2) of the Criminal Procedure Act, the court shall dismiss the custody application as well in the form of a decision or an adjudication. The same shall apply to custody applications meeting the above conditions.

(6) When a protective custody is issued without any sentences of criminal penalties, the whole or a part of the pre-sentence protective confinement period(including a period of confinement under the warrant of detention; hereinafter the same shall apply) shall be counted in calculating the period of commitment to the protective custody facility. <Amended by Act No. 4089, Mar. 25, 1989>

(7) A prosecutor, a subject for whom custody is applied or any person provided in Articles 339 through 341 of the Criminal Procedure Act may file an appeal according to the procedures prescribed in the Criminal Procedure Act.

(8) When an appeal or a waiver or a withdrawal thereof is filed concerning a decision of an accused case, the same appeal or waiver or withdrawal thereof shall be considered to have been filed in regard to the custody application case as well. The same shall apply to cases of a recovery of right of appeal, an application for retrial, or an extraordinary appeal.

Article 21(Provisions Mutatis Mutandis) #

(1) The provisions of Article 13 (1) shall apply mutatis mutandis to protective detention by the court of a subject for whom custody is applied.

(2) The provisions of Articles 282 and 283 of the Criminal Procedure Act shall apply mutatis mutandis to cases for custody application for persons prescribed in Articles 5 and 8 (1) 1. <Amended by Act No. 4089, Mar. 25, 1989>

Article 22(Direction of Execution) #

(1) A prosecutor shall direct the execution of a protective disposition.

(2) The direction under the provisions of paragraph (1) shall be conducted in writing accompanied by an official copy of the decision or adjudication.

Article 23(Order and Method of Execution) #

(1) A penal sentence shall be executed first when a protective custody is adjudged concurrently with a penal sentence (including the case where a criminal penalty is rendered during his commitment to a protective custody facility): Provided, That a sentence of suspension of qualification shall be executed with a protective custody. <Amended by Act No. 4089, Mar. 25, 1989; Act No. 5179, Dec. 12, 1996>

(2) The rehabilitative custody shall be executed first when a penal sentence is adjudged concurrently with the rehabilitative custody. In this case, the period of rehabilitative custody shall be counted in to the period of penalty <Newly Inserted by Act No. 5179, Dec. 12, 1996>

(3) When not less than one decision sentencing to protective custody is rendered, only the custody of the last sentence shall be executed.<Amended by Act No. 4089, Mar. 25, 1989>

Article 23-2(Disclosure of Contents of Custody, etc.) #

Details and actual state of execution of protective custodies and rehabilitative custodies under this Act shall be disclosed in accordance with the Presidential Decree.

[This Article Newly Inserted by Act No. 4089, Mar. 25, 1989]

Article 24(Summons, Execution of Custody) #

(1) A prosecutor may, to execute a custody decision, summon a protective custody subject or a rehabilitative custody subject (both of them shall be hereinafter collectively referred to as “custody subject”) who is not already under a protective confinement.

(2) When a custody subject does not accede to the summons, the prosecutor may place the subject under protective arrest by issuing a custody execution warrant.

(3) In case of paragraph (2), when a custody subject escapes or presents a danger of escape, or his present location is not identified, the prosector may place the subject under protective arrest by issuing a custody execution warrant without first issuing a summons.

(4) A custody execution warrant shall have the same effect as a custody warrant.

Article 25(Review of Protective Parole and Exemption from Custody. etc. and Decision Thereon) #

(1) The Community Protection Committee shall determine after review whether a protective parole should be granted to a protective custody subject once every year after commencement of the execution of the custody and whether exemption from the execution of the custody should be granted to a subject on protective parole once every six months. <Amended by Act No. 4089, Mar. 25, 1989>

(2) The Community Protection Committee shall determine after review whether the execution of rehabilitative custody should be suspended every six months after commencement of such execution for each rehabilitative custody subject, and whether such execution should be terminated every six months after suspension of such execution or entrustment for treatment for each rehabilitative subject on suspension or in entrustment for treatment. <Amended by Act No. 5179, Dec. 12, 1996>

Article 26(Criminal Parole and Protective Custody) #

(1) The Parole Committee as prescribed in Article 49 of the Criminal Administration Act shall obtain the approval of the Community Protection Committee before it recommends a parole to an inmate upon whom a protective custody has been sentenced together with the criminal penalty.

(2) When a protective custody subject under paragraph (1) has his remaining prison term elapsed without his parole being cancelled or nullified during the period on such parole, he shall be exempted from execution of the protective custody: Provided, That this shall not apply when the Community Protection Committee decides otherwise.

Article 27(Exemption, etc. from Execution of Protective Custody) #

(1) When the period of protective supervision expires, the execution of protective custody shall be exempted for a probationer pursuant to the provision of Article 10 (1) 1 and the rehabilitative custody shall be terminated for a probationer pursuant to the provision of Article 10 (1) 2.

(2) When the performance record of a probationer pursuant to the provision of Article 10 (1) 1 is good, the Community Protection Committee may by its decision exempt him from the execution of protective custody, and when the performance record and treatment status of a probationer pursuant to the provision of Article 10 (1) 2 are good, the Committee may by its decision terminate the rehabilitative custody.

[This Article Wholly Amended by Act No. 5179, Dec. 12, 1996]

Article 28(Entrustment for Treatment) #

(1) The Community Protection Committee may entrust a rehabilitative custody subject as prescribed in the former part Article 8 (1) 1 to his relative for treatment outside the rehabilitation custody facility for a reasonable period so designated when two years have passed after the commencement of the execution of the rehabilitative custody. The same shall be applicable to persons as prescribed in the latter part Article 8 (1) 1 and sentenced only to rehabilitative custody. <Amended by Act No. 4089, Mar. 25, 1989>

(2) When a rehabilitative custody subject who has concurrently been sentenced to a criminal penalty and has completed a period of rehabilitative custody equivalent to that of the penal sentence the Community Protection Committee may entrust him, to his relative for a reasonable period so designated for treatment outside the rehabilitation custody facility.

(3) Before the Community Protection Committee decides to entrust a rehabilitative custody subject to a relative for treatment under the provisions of paragraph (1) or (2), it shall receive an acknowledgement from the relative guaranteeing hospitalization or treatment outside the rehabilitative custody facility.

Article 29(Duty of Probationer, etc. to Report) #

(1) The probationer or his relative shall file in advance a report to the chief of the custody facility giving the expected address of the supervisee after release and other necessary matters and within 10 days after release, file a written report to the protective supervisor giving the address, occupation, and hospital where the protective supervisee is receiving treatment and other necessary matters, in accordance with the Presidential Decree. <Amended by Act No. 5179, Dec. 12, 1996>

(2) When a protective custody subject who has been released on criminal parole while serving a penal sentence concurrently imposed has completed his prison term by having his remaining prison term elapsed without his parole being cancelled or nullified, he shall report in writing to the protective supervisor within 10 days of the date of completion giving his address, occupation and other necessary matters, in accordance with the Presidential Decree. <Amended by Act No. 5179, Dec. 12, 1996>

Article 30(Cancellation of Protective Parole, etc. and Re-execution of Custody) #

(1) The Community Protection Committee may by its decision cancel protective parole, suspension or entrustment for outside treatment, and execute custody again when the probationer falls under any of the following subparagraphs: <Amended by Act No. 5179, Dec. 12, 1996>

1. When he has committed intentionally an offense punishable by imprisonment without prison labor or a heavier penalty;

2. When he has violated the matters to be observed in accordance with Article 11 or other directions or supervisions concerning the probation; or

3. When the condition of the probationer prescribed in Article 10 (1) 2 gets worse to require a rehabilitative custody.

(2) In case of paragraph 1, the days spent under protective parole are not counted towards the term of commitment to protective custody facility. <Amended by Act No. 4089, Mar. 25, 1989>

Article 31(Suspension of Execution of Custody) #

When the custody subject has a ground which falls under any of subparagraphs of Article 471 (1) of the Criminal Procedure Act, a prosecutor may suspend the execution of custody in accordance with the provisions of the same Article. In this case, the supervision of the subject with respect to whom the execution of custody has been suspended shall be conducted according to the rules provided for the supervision of a person with respect to whom the execution of criminal penalty has been suspended.

Article 32(Community Protection Committee) #

(1) The Community Protection Committee(hereinafter referred to as the “Committee”) shall be established in the Ministry of Justice and be responsible for review of and decision on matters related to the administration and execution of protective disposition.

(2) The Committee shall be composed of: not more than seven persons who have qualifications as a judge, prosecutor, or attorney-at-law, and not more than two persons who have qualifications as a medical doctor. The Vice Minister of Justice shall be the chairman of the Committee. <Amended by Act No. 4089, Mar. 25, 1989>

(3) The Committee shall review and decide the matters falling under the following subparagraphs: <Amended by Act No. 5179, Dec. 12, 1996>

1. Matters concerning protective parole and cancellation thereof or exemption from execution of protective custody;

1-2. Matters concerning entrustment of a protective custody subject pursuant to Article 7 (2).

2. Matters concerning entrustment of a rehabilitative custody subject for treatment, suspension and cancellation thereof and termination of a rehabilitative custody;

3. Matters concerning imposition of conditions upon, and issuance of instructions or supervisions to be observed by a probationer, and sanction to be imposed in case of violation thereof; and

4. Other matters related to matters prescribed in subparagraphs 1 through 3.

(4) The Committee may have advisory members who have expert knowledge and social reputation. Such advisory members shall be commissioned by the Minister of Justice upon recommendation by the chairman of the Committee.

(5) The composition, operation, administration of the Committee and commission of advisors and other necessary matters shall be determined by the Presidential Decree.

Article 33(Review) #

(1) The Committee shall review the matters as prescribed in Article 32 (3) on the basis of materials presented for the review.

(2) When the Committee finds it necessary in conducting the review as prescribed in paragraph (1), the Committee may have a public official belonging to the Ministry of Justice investigate matters necessary for the decision, or may directly summon and question or investigate a custody subject or a probationer (hereinafter collectively referred to as the “protected person”) or other persons concerned.

(3) The public official who has been ordered to investigate under the provisions of paragraph (2) shall have the following authorities:

1. Summoning, questioning and investigating the protected person or other persons concerned; and

2. Requesting national or public agencies, or public or private organizations for confirmation of relevant information or submission of materials concerned.

(4) A protected person or other persons concerned shall accede to the summons, questioning and investigation by the public official, and national or public agencies or public or private organizations receiving a request for confirmation of information or submission of materials as prescribed in paragraph (3) shall not refuse such requests unless they constitute national secrets or such an action may adversely affect public security and order.

Article 34(Resolution and Decisions) #

(1) A quorum of the committee shall consist of at least half of the members, including the chairman, and any decision of the Committee shall be made by a majority vote of the members present: Provided, That if the vote is tied, the Chairman shall have the deciding vote.

(2) Any decision by the Committee shall be accompanied by a description of the grounds therefor and shall be in writing bearing the names and seals of the members of the Committee present.

Article 35(Application for Review by Prosecutors) #

(1) A prosecutor of the district public prosecutor’s office or the district public prosecutor’s branch office having jurisdiction over the area in which a protected person resides (or in which the facility is located if he is committed to a facility) may apply to the Committee for a review of and decision on matters as prescribed in Article 32 (3).

(2) Any application for review under the provisions of paragraph (1) shall be filed by submitting the review application in writing and materials necessary for decision on the matters relating to the application. In this case, Article 12 shall apply mutatis mutandis to the review of the materials.

(3) When filing an application under the provisions of paragraph (2), the prosecutor shall consult the chief of the custody facility or protective supervisor. <Amended by Act No. 5179, Dec. 12, 1996>

(4) The chief of any custody facility or a protective supervisor may request the prosecutor concerned to file an application as prescribed in paragraph (1). <Amended by Act No. 5179, Dec. 12, 1996>

Article 35-2(Application for Review by Rehabilitative Custody Subject) #

(1) A rehabilitative custody subject, his legal representative or a relative may apply to the Committee for a review for termination of custody, on the ground that he is so cured that the custody is no longer necessary.

(2) Any application for review under the provisions of paragraph (1) shall be filed by submitting the review application in writing and materials in regard to the grounds for the review application.

(3) When the Committee dismisses the application filed under the provisions of paragraph (1), the reasons of dismissal shall be specified in the written decision.

(4) Any application filed under the provisions of paragraph (1) shall be made after a lapse of six months from the date of commencement of the execution of the rehabilitative custody. When the application is dismissed, the re-application may be made subsequent to a lapse of six months thereafter.

[This Article Newly Inserted by Act No. 4089, Mar. 25, 1989]

Article 36(Statute of Limitation on Custody Application) #

(1) The statute of limitation on custody application shall expire with the expiration of the statute of limitation for the prosecution of the case for criminal offenses which are tried or could have been tried concurrently with the custody case.

(2) The statute of limitation for a custody case for which an application has been filed shall be deemed to have been expired when fifteen years pass by without any final decision commencing from the date of application.

Article 37(Statute of Limitation on Custody) #

(1) Execution of custody shall be barred when the following periods have passed without execution of custody after the decision has become final: <Amended by Act No. 4089, Mar. 25, 1989>

1. Ten years for a case involving a protective custody or a rehabilitative custody under Article 8 (1) 1;

2. Seven years for a case involving a rehabilitative custody under Article 8 (1) 2; and

3. Deleted. <Act No. 4089, Mar. 25, 1989>

(2) The period of suspension of execution of custody or protective parole, suspension or other inexecutable period shall be excluded from the calculation of the statute of limitation. <Amended by Act No. 5179, Dec. 12, 1996>

(3) The statute of limitation shall stop upon arrest of the protected person.

Article 38(Sentence of Custody and Suspension of Qualification) #

Anyone sentenced to custody shall be suspended from the following qualifications until completion of the execution of custody or exemption therefrom:

1. Qualification to become a public official;

2. Qualification to become a candidate or to vote provided in a public law; and

3. Qualification to conduct public affairs the requirements of which are specified by an Act.

Article 39(Nullification of Custody) #

(1) The court may nullify a decision of custody at the request of the custody subject or a prosecutor when he has completed the execution of the custody term or has been exempted therefrom, has compensated for damages to the victim of the offense and has not been sentenced to suspension of qualification or any heavier penalty or another custody order for seven years. The provisions of Article 337 of the Criminal Procedure Act shall apply mutatis mutandis to this proceeding.

(2) A decision of custody shall be considered to have been nullified when a custody subject has completed the execution of custody or has been exempted from such execution, and has not been sentenced to suspension of qualification or a heavier penalty or another custody order for ten years.

Article 40(Calculation of Term) #

(1) The term of protective disposition commences from the date on which the execution of the disposition commences. In this case, the first day shall be counted as a full day without consideration of the number of hours involved.

(2) Any period passed in violation of the execution of a protective disposition shall not be counted in the term of protective disposition.

Article 41(Special Rules for Persons Subject to Military Act) #

(1) In protective disposition cases involving those who fall under one of subparagraphs of Article 2 (1) of the Military Court Act, the military court shall perform the function of the court, the military prosecutor that of the public prosecutor and the military judicial official that of the judicial police officer under this Act. <Amended by Act No. 3993, Dec. 4, 1987; Act No. 4704, Jan. 5, 1994>

(2) The Military Community Protection Committee shall be established in the Ministry of National Defense to administer and manage a protective disposition for those who fall under one of the subparagraphs of Article 2 (1) of the Military Court Act and to review and decide matters concerning the execution of the disposition. <Amended by Act No. 3993, Dec. 4, 1987>

(3) Provisions concerning the Committee shall apply mutatis mutandis to the composition and operation of the Military Community Protection Committee.

(4) The military court, the military prosecutor or the Military Community Protection Committee shall transfer the case to the court, the prosecutor or the Committee corresponding to the transferor, when it appears evident that the protective subject does not fall under any of subparagraphs of Article 2 (1) of the Military Court Act. In this case, any investigation, application, trial, submission, review or decision made prior to the transfer shall continue in effect even after the transfer. <Amended by Act No. 3993, Dec. 4, 1987; Act No. 4704, Jan. 5, 1994>

(5) The Court, prosecutor or the Committee shall transfer a case to the military court, the military prosecutor or the Military Community Protection Committee corresponding to the transferor, when it appears evident that the protective subject falls under one of subparagraphs of Article 2 (1) of the Military Court Act. In this case, any investigation, application, trial, submission, review or decision made prior to the transfer shall continue in effect even after the transfer. <Amended by Act No. 3993, Dec. 4, 1987; Act No. 4704, Jan. 5, 1994>

Article 42(Application mutatis mutandis of Other Acts) #

In the absence of special provisions in this Act, the provisions of the Criminal Procedure Act, the Criminal Administration Act and the Protection and Surveillance, etc. Act shall apply mutatis mutandis to protective dispositions to the extent that the particular situation of the case does not prohibit such application. <Amended by Act No. 5179, Dec. 12, 1996>

Article 42-2 #

Deleted.<by Act No. 5179, Dec. 12, 1996>

Article 43(Penal Provision) #

(1) A custody subject shall be sentenced to imprisonment with prison labor for not more than one year if he resists or disobeys due orders of the persons in charge of the execution of custody, or if he escapes.

(2) A custody subject shall be sentenced to imprisonment with prison labor for not more than seven years if he commits an offense as prescribed in paragraph (1), or commits assault and battery, intimidation or destruction of property, by joining together with another custody subject or subjects.

(3) If a person in charge of the execution of custody permits the custody subject to escape or accommodates such an escape, he shall be sentenced to imprisonment with prison labor with specific term of not less than one year.

(4) If a person in charge of the execution of custody commits an offense under paragraph (3), after taking, asking for or promising any bribe, he shall be sentenced to imprisonment with prison labor with specific term of not less than two years.

(5) If a person makes a false report to any public office or official with the purpose of subjecting another person to a protective disposition, he shall be sentenced to imprisonment with forced labor for not more than ten years.

(6) If a person commits an offense as prescribed in Article 152 (1) of the Criminal Act with the purpose of incriminating another person who is a subject under a custody application case, he shall be sentenced to imprisonment with prison labor for not more than ten years.

(7) If a person commits any offense provided in Article 154, 233 or 234 (offense of issuing a false certificate of diagnosis only) of the Criminal Act with regard to a protective disposition case, he shall be sentenced to imprisonment with prison labor or imprisonment without prison labor for not more than ten years. In this case, a concurrent sentence of suspension of qualification for not more than ten years shall be imposed.

(8) If a relative of a rehabilitative custody subject who has been entrusted with treatment of the subject as prescribed in Article 28 (2), permits the subject to escape or accommodates his escape in violation of his acknowledgement, the relative shall be sentenced to imprisonment with prison labor for not more than three years or to a fine of not more than one million won.