ACT ON MEDICAL TREATMENT AND CUSTODY

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ACT ON MEDICAL TREATMENT AND CUSTODY — 법갈피

Article 4(Applications for Medical Treatment and Custody by Prosecutors) #

(1) Where a person subject to medical treatment and custody is needs medical treatment and custody, a prosecutor may apply for medical treatment and custody to the competent court for such person.

(2) A prosecutor shall consider the diagnosis or expert opinions of medical specialists, such as a psychiatrist when applying for medical treatment and custody for a person subject to medical treatment and custody: Provided, That with respect to persons subject to medical treatment and custody under Article 2 (1) 3, the prosecutor shall apply for medical treatment and custody after obtaining the diagnosis or expert opinions of medical specialists, such as a psychiatrist. <Amended on Aug. 4, 2011>

(3) When applying for medical treatment and custody, a prosecutor shall submit an application for medical treatment and custody to the competent court. Applications for medical treatment and custody shall be accompanied by the copies thereof equal in number to that of candidates for medical treatment and custody.

(4) The following matters shall be entered in an application for medical treatment and custody:

1. Name of a candidate for medical treatment and custody and other matters to identify the candidate for medical treatment and custody;

2. Facts to justify the application;

3. Applicable legal provisions;

4. Other matters prescribed by Presidential Decree.

(5) A prosecutor may apply for medical treatment and custody at any time before the appellate trial of the case he or she prosecuted concludes on arguments.

(6) Upon receipt of an application for medical treatment and custody application, the court shall serve the candidate for medical treatment and custody or his or her attorney-at-law with a copy thereof without delay: Provided, That the court shall do so by not later than five days before the date of first trial when the application for medical treatment and custody is filed together with a public prosecution, and by not later than five days before the date of the next trial when the medical treatment and custody application is filed during the trial of a prosecuted case.

(7) If the court deems it necessary to sentence a person to medical treatment and custody as a result of the trial of a prosecuted case, it may request the relevant prosecutor to file an application for medical treatment and custody.

[This Article Wholly Amended on Jun. 13, 2008]

Article 16(Details of Medical Treatment and Custody) #

(1) Any person sentenced to medical treatment and custody (hereinafter referred to as "person under medical treatment and custody") shall be committed to a medical treatment and custody facility and actions shall be taken for the medical treatment of such person.

(2) The period for which a person under medical treatment and custody shall be committed to a medical treatment and custody facility shall not exceed the following applicable periods:

1. Persons falling under Article 2 (1) 1 and 3: 15 years;

2. Persons falling under Article 2 (1) 2: Two years.

(3) If a person under medical treatment and custody after being sentenced to medical treatment and custody for committing a homicide defined in subparagraph 3-2 of Article 2 of the Act on Electronic Monitoring (hereinafter referred to as “homicide”) is deemed likely to repeat such crime and require continuous medical treatment, the court may, upon the prosecutor’s request based on the application filed by the head of the medical treatment and custody facility, decide to extend the period referred to in the subparagraphs of paragraph (2) by up to two years for an extension on up to three occasions. <Newly Inserted on Jul. 30, 2013; Feb. 4, 2020>

(4) The head of a medical treatment and custody facility shall file an application under paragraph (3) after obtaining the diagnosis or psychiatric test conducted by a medical specialist, such as a psychiatrist. <Newly Inserted on Jul. 30, 2013>

(5) The prosecutor shall make a request under paragraph (3) by no later than six months before the period provided in the subparagraphs of paragraph (2) or the period extended under paragraph (3) expires. <Newly Inserted on Jul. 30, 2013>

(6) The court’s decision under paragraph (3) shall be made by no later than three months before the period provided in the subparagraphs of paragraph (2) or the period extended under paragraph (3) expires. <Newly Inserted on Jul. 30, 2013>

(7) Article 22 (5) through (11) of the Act on Pharmacologic Treatment of Sex Offenders’ Sexual Impulses shall apply mutatis mutandis to the appeal and re-appeal of the prosecutor or the person under medical treatment and custody or his or her legal representative against the decision made under paragraph (3), in this regard, “an inmate convicted of sexual assault” shall be construed as “a person under medical treatment and custody”. <Newly Inserted on Jul. 30, 2013>

(8) Medical treatment at medical treatment and custody facilities under paragraph (1) and other necessary matters shall be determined by Presidential Decree. <Amended on Jul. 30, 2013>

[This Article Wholly Amended on Jun. 13, 2008]

Article 25-3(Prohibition on Isolation and Other Restrictions) #

(1) The head of a medical treatment and custody facility shall not physically restrict any person under medical treatment and custody or candidate for medical treatment and custody (hereinafter referred to as "person under medical treatment and custody, etc."), such as isolating or binding him or her, unless he or she falls under any of the following circumstances: Provided, That direct physical restrictions, such as binding a person under medical treatment and custody, etc., shall be permitted only in cases falling under subparagraph 1:

1. Where the relevant person is highly likely to put himself or herself or other persons in danger and it is deemed significantly impracticable to avoid such danger with any method other than physical restriction;

2. Where the relevant person commits a serious unlawful act or disciplinary offense;

3. Where the relevant person commits any other serious act of disrupting order at the facility.

(2) Where the head of a medical treatment and custody facility intends to physically restrict a person under medical treatment and custody, etc., such as isolating or binding him or her, pursuant to paragraph (1), he or she shall comply with a psychiatrist's instructions. Provided, That a doctor in charge may provide instructions in cases falling under paragraph (1) 2 or 3. <Amended on Oct. 20, 2020>

(3) Where the head of a medical treatment and custody facility isolates a person under medical treatment and custody, etc. pursuant to paragraph (1) or (2), he or she shall do so within the medical treatment and detention facility.

(4) Where the head of a medical treatment and detention facility has physically restricted a person under medical treatment and custody, etc. pursuant to paragraph (1) or (2), he or she shall prepare and keep the details of such physical restriction, including the reason and period thereof and the time the restriction was released, as prescribed by Presidential Decree.

[This Article Newly Inserted on Dec. 12, 2017]

Article 32(Probation) #

(1) Probation prescribed in the Act on Probation (hereinafter referred to as "probation") shall begin for a person under medical treatment and custody if he or she falls under any of the following circumstances: <Amended on Dec. 12, 2017>

1. When the execution of medical treatment and custody for the person under medical treatment and custody is provisionally terminated;

2. When the person under medical treatment and custody is entrusted to his or her legal representative, etc. for treatment outside the medical treatment and custody facility;

3. When the period specified in any subparagraph of Article 16 (2) or the period extended pursuant to Article 16 (3) (hereinafter referred to as "period for medical treatment and custody") for a person under medical treatment and custody expires, if the Medical Treatment and Custody Deliberation Committee established under Article 37 conducts a review for the person for whom the period for medical treatment and custody has expired and determines that probation is required for such person.

(2) The period for probation shall be three years.

(3) When a person for whom probation has begun (hereinafter referred to as "probationer") falls under any of the following circumstances, the probation shall be terminated: <Amended on Dec. 12, 2017>

1. When the period for probation expires;

2. When the Medical Treatment and Custody Deliberation Committee under Article 37 makes a decision to terminate medical treatment and custody, although the period for probation has not yet expired;

3. When the probationer is recommitted, becoming subject to the performance of medical treatment and custody again, although the period for probation has not yet expired.

(4) Where a probationer is subject to the execution of a sentence of imprisonment without labor or heavier punishment for committing a new crime during the period for probation, the probation shall not be terminated; and the period for probation for such probationer shall continue during the period of execution of the sentence. <Newly Inserted on Dec. 12, 2017>

(5) If the period for probation still remains when the execution of a sentence of imprisonment without labor or heavier punishment provided for in paragraph (4) is completed or remitted for a probationer or when a probationer is paroled, the probation shall be performed during the remaining period. <Newly Inserted on Dec. 12, 2017>

[This Article Wholly Amended on Jun. 13, 2008]

Article 33(Matters to Be Observed by Probationer) #

(1) A probationer shall faithfully implement the matters to be observed under Article 32 (2) of the Act on Probation.

(2) Where deemed necessary in light of the progress of medical treatment, characteristics, etc. of each probationer, the Medical Treatment and Custody Deliberation Committee established pursuant to Article 37 may separately provide for all or some of the following matters as matters to be specially observed during the period for probation, in addition to the matters to be observed under paragraph (1): <Amended on Dec. 12, 2017>

1. Regular outpatient treatment as well as inspections on whether probationers take prescribed medications;

2. Restrictions on going out at particular times, such as at night, which are likely to give probationers an opportunity or impulse to recommit a crime;

3. Prohibition of access to particular areas and places which are likely to give probationers an opportunity or impulse to recommit a crime;

4. Prohibition of access to particular persons, such as victims, who are likely to become targets of a recommitted crime;

5. Restrictions on the place of residence if a probationer has no permanent address;

6. Prohibition of drinking in excess of a certain amount;

7. Prohibition of the use of narcotics and other addictive substances;

8. Inspections on whether probationers administer, smoke, or take any narcotics prescribed in the Narcotics Control Act;

9. Any other matters deemed necessary to prevent probationers from recommiting a crime or from having a disease or habit again which has caused them to be subject to medical treatment and custody, to the extent that they can observe in light of their living conditions, mental and physical conditions, residential environments, etc. and that their freedom is not restricted unfairly.

(3) Where a probationer violates the matters to be observed under paragraph (1) or (2) or where considerable changes in circumstances occur, the Medical Treatment and Custody Deliberation Committee established pursuant to Article 37 may deliberate and decide on the addition, alteration, or deletion of all or some of the matters to be observed either ex officio or upon request of the director of the relevant probation office. <Newly Inserted on Dec. 12, 2017>

(4) A notice on the matters to be observed under paragraphs (1) through (3) shall be given in writing. <Newly Inserted on Dec. 12, 2017>

(5) Where substantial grounds exist to acknowledge that a probationer violates or is likely to violate the matters to be observed under paragraphs (1) through (3), the director of the relevant probation office may urge the probationer to observe such matters, and may warn that he or she may receive a disposition disadvantageous to him or her, such as cancelling a provisional termination of medical treatment and custody provided for in Article 22 or the entrustment of medical treatment provided for in Article 23 (hereinafter referred to as "provisional termination, etc."). <Newly Inserted on Dec. 12, 2017>

[This Article Wholly Amended on Jun. 13, 2008]

Article 33-2(Detention and Detention Period) #

(1) The director of a probation office may arrest a probationer if the probationer violates the matters to be observed under Article 33. In such cases, Articles 39 and 40 of the Act on Probation shall apply mutatis mutandis to the arrest of the probationer.

(2) Where deemed necessary to request a prosecutor to file any of the following applications, the director of a probation office may detain an arrested probationer at a prison, a detention center, or a medical treatment and custody facility:

1. An application for cancellation of the provisional termination of medical treatment and custody provided for in Article 22;

2. An application for cancellation of the entrustment of medical treatment provided for in Article 23.

(3) Where the director of a probation office intends to detain a probationer pursuant to paragraph (2), he or she shall file a request for detention with a prosecutor and obtain permission therefor from a judge of the competent local court at the request of the prosecutor. In such cases, the prosecutor shall file an application for permission for detention within 48 hours from the arrest of the probationer.

(4) The director of a probation office shall request a prosecutor to file an application for cancellation of a provisional termination, etc. within 24 hours after receipt of permission for detention.

(5) Upon receipt of a request from the director of a probation office under paragraph (4), a prosecutor shall file an application for cancellation of a provisional termination, etc. with the Medical Treatment and Custody Deliberation Committee established pursuant to Article 37 within 48 hours after receipt thereof if the prosecutor deems that the grounds for such request are reasonable.

(6) The period during which the director of a probation office may detain a probationer pursuant to paragraph (2) shall be 30 days from the date he or she arrests the probationer: Provided, That if a prosecutor files an application under paragraph (5) and if necessary for review by the Medical Treatment and Custody Deliberation Committee established pursuant to Article 37, the head of the probation office may file a request for extension of such period with the prosecutor, and extend the detention period for up to 20 days only once after obtaining permission therefor from a judge of the competent local court at the request of the prosecutor.

(7) The director of a probation office shall cancel detention and immediately release the relevant probationer in any of the following circumstances:

1. Where the Medical Treatment and Custody Deliberation Committee established pursuant to Article 37 dismisses a prosecutor's application for cancellation of a provisional termination, etc. under Article 43 (1);

2. Where a prosecutor dismisses a request from the director of the probation office to cancel a provisional termination, etc. under Article 43 (3).

(8) Where a provisional termination, etc. are cancelled for a probationer detained pursuant to paragraph (2), the detention period shall be included in the period for medical treatment and custody.

[This Article Newly Inserted on Dec. 12, 2017]

Article 37(Medical Treatment and Custody Deliberation Committee) #

(1) The Medical Treatment and Custody Deliberation Committee (hereinafter referred to as the "Committee") shall be established within the Ministry of Justice to review and determine matters concerning the management and performance of medical treatment and custody and probation.

(2) The Committee shall consist of up to six members who have qualifications as a judge, prosecutor, or attorney-at-law, and up to three members who have qualifications as medical specialists, such as a psychiatrist, and the Vice Minister of Justice shall be the chairperson of the Committee. <Amended on Aug. 4, 2011; Dec. 18, 2018>

(3) The Committee shall review and determine the following matters: <Amended on Jul. 30, 2013; Dec. 12, 2017>

1. Matters concerning the transfer of persons under medical treatment and custody between medical treatment and custody facilities;

2. Matters concerning the entrustment of medical treatment and provisional termination of the performance of medical treatment and custody and cancellation thereof, and permanent termination of medical treatment and custody for persons under medical treatment and custody;

3. Matters to be observed by probationers as well as the addition, revision, or deletion of all or some of the matters to be observed;

4. Matters concerning the commencement of probation when the period for medical treatment and custody for a probationer expires;

5. Other matters concerning subparagraphs 1 through 4.

(4) The Committee may have advisory members with expert knowledge and social reputation who are commissioned by the Minister of Justice under the recommendation of the chairperson.

(5) A member of the Committee who is not a public official shall be deemed a public official in applying any penalty provisions of the Criminal Act and other Acts. <Newly Inserted on Dec. 1, 2015>

(6) The organization, operation and administration of the Committee, commissioning of advisory members and other necessary matters shall be prescribed by Presidential Decree. <Amended on Dec. 1, 2015>

[This Article Wholly Amended on Jun. 13, 2008]

Article 50(Special Rules for Persons Subject to Application of Martial Law) #

(1) With respect to medical treatment and custody cases for persons falling under any of the subparagraphs of Article 2 (1) of the Military Court Act, the military court, prosecutors of military tribunal and military judicial police officers shall perform the duties under this Act. In such cases, the "military court", "prosecutors of military tribunal" and "military judicial police officer" shall be deemed a "court", "prosecutor" and "judicial police officer", respectively. <Amended on Jan. 6, 2016>

(2) The Military Medical Treatment and Custody Deliberation Committee shall be established within the Ministry of National Defense to manage the medical treatment and custody of persons falling under any of the subparagraphs of Article 2 (1) of the Military Court Act and review and determine matters concerning the performance thereof.

(3) Provisions pertaining to the Committee shall apply mutatis mutandis to the organization and operation of the Military Medical Treatment and Custody Deliberation Committee.

(4) When it is clear that a person subject to medical treatment and custody is not a person who falls under any of the subparagraphs of Article 2 (1) of the Military Court Act, the military court, prosecutors of military tribunal or Military Medical Treatment and Custody Deliberation Committee shall transfer the medical treatment and custody case concerned to the corresponding court, prosecutors or the Committee. In such cases, any investigation, request, trial, application, review and decision before the transfer takes place shall not become invalid even after such transfer. <Amended on Jan. 6, 2016>

(5) When it is clear that a person subject to medical treatment and custody is a person who falls under any subparagraph of Article 2 (1) of the Military Court Act, the court, prosecutors of military tribunal or Committee shall transfer the medical treatment and custody case concerned to the corresponding military court, military prosecutors or Military Medical Treatment and Custody Deliberation Committee. In such cases, any investigation, request, trial, application review or decision before the transfer takes place shall not become invalid even after such transfer. <Amended on Jan. 6, 2016>

(6) Article 56 of the Act on Probation, Etc. shall apply mutatis mutandis to the persons who receive an order of medical treatment under Article 44-2. <Newly Inserted on Dec. 1, 2015>

[This Article Wholly Amended on Jun. 13, 2008]

Article 52(Penalty Provisions) #

(1) Any person under medical treatment and custody who disobeys the orders of the performer of medical treatment and custody for medical treatment and custody without any justifiable grounds or flees shall be punished by imprisonment with labor for not more than one year.

(2) Where at least two persons under medical treatment and custody jointly commit the crime under paragraph (1), they shall be punished by imprisonment with labor for not more than three years.

(3) Where a person who performs medical treatment and custody causes a person under medical treatment and custody to flee or facilitates such flight, the former shall be punished by imprisonment with labor for a limited term of at least one year.

(4) A person who performs medical treatment and custody and commits the crime under paragraph (3) after taking, demanding or promising to provide a bribe shall be punished by imprisonment with labor for a limited term of at least two years.

(5) A person who files a false report to public institutions or public officials for the purpose of causing another person to become subject to the disposition of medical treatment and custody shall be punished by imprisonment with labor for not more than ten years or by a fine not exceeding 15 million won.

(6) A person who commits perjury under Article 152 (1) of the Criminal Act with respect to a medical treatment and custody application case for the purpose of slandering and inflicting harm on the applicant for medical treatment and custody shall be punished by imprisonment with labor for not more than ten years.

(7) A person who commits the crime under Article 154 of the Criminal Act with respect to a medical treatment and custody application case shall be punished by imprisonment with labor for not more than ten years.

(8) A person who commits the crime under Article 233 or 234 (limited to preparation of a false diagnosis) of the Criminal Act with respect to an application for medical treatment and custody case shall be punished by imprisonment with labor for not more than five years, suspension of qualification for not more than ten years or by a fine not exceeding 50 million won. <Amended on Jan. 7, 2014>

(9) Where a legal representative, etc. to whom medical treatment is entrusted under Article 23 (3) causes a person under medical treatment and custody to flee or facilitates such flight in contravention of his or her pledge, he or she shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding five million won.

(10) Any of the following persons shall be punished by imprisonment with labor for not more than six months or by a fine not exceeding five million won: <Newly Inserted on Dec. 12, 2017>

1. A person under medical treatment and custody who carries into a medical treatment and custody facility, possesses, uses, transfers, receives, exchanges, or hides a gun, sword, explosive, toxic chemicals, deadly weapon or other dangerous articles, alcoholic beverages, cigarettes, a firearm, cash, checks, pornographic materials, or information and communication devices including a mobile phone (hereinafter referred to as "prohibited articles");

2. A person who carries any prohibited article into a medical treatment and custody facility to deliver it to a person under medical treatment and custody without permission; or transfers to, receives from, or exchanges with a person under medical treatment and custody any prohibited article.

(2) A person who attempts to commit a crime provided for in paragraph (10) shall be punished. <Newly Inserted on Dec. 12, 2017>

(12) Any prohibited article shall be confiscated. <Newly Inserted on Dec. 12, 2017>

(13) Where a person who has become a probationer upon the expiration of the period for medical treatment and custody receives the warning provided for in Article 33 (5) for violating the matters to be observed under Article 33 (1) through (3) without justification and violates again the matters provided for in Article 33 (1) through (3) without justification, such person shall be punished by imprisonment with labor for not more than one year or by a fine not exceeding ten million won. <Newly Inserted on Dec. 12, 2017>

[This Article Wholly Amended on Jun. 13, 2008]

ACT ON MEDICAL TREATMENT AND CUSTODY

Article 1(Purpose) #

Article 2(Persons Subject to Medical Treatment and Custody) #

Article 2-2(Scope of Sexually Violent Crimes Subject to Medical Treatment and Custody) #

Article 2-3(Persons Subject to Order of Medical Treatment) #

Article 3(Jurisdiction) #

Article 4(Applications for Medical Treatment and Custody by Prosecutors) #

Article 5(Investigation) #

Article 6(Medical Treatment and Custody Warrants) #

Article 7(Independent Applications for Medical Treatment and Custody) #

Article 8(Applications for Medical Treatment and Custody and Effect of Arrest Warrant) #

Article 9(Absence of Applicant for Medical Treatment and Custody) #

Article 10(Transfer to Criminal Trial Proceedings) #

Article 11(Notification of Details of Trial) #

Article 12(Judgments on Medical Treatment and Custody) #

Article 13(Expert Opinion) #

Article 14(Appeal) #

Article 15(Provisions Applicable Mutatis Mutandis) #

Article 16(Details of Medical Treatment and Custody) #

Article 16-2(Medical Treatment and Custody Facilities) #

Article 17(Direction for Performance) #

Article 18(Orders and Method of Performance) #

Article 19(Separate Committal) #

Article 20(Disclosure of Details of Medical Treatment and Custody) #

Article 21(Summons for and Performance of Medical Treatment and Custody) #

Article 21-2(Transfers between Medical Treatment and Custody Facilities) #

Article 22(Review and Decision on Provisional Termination of Medical Treatment and Custody) #

Article 23(Entrustment of Medical Treatment) #

Article 24(Suspension of Performance of Medical Treatment and Custody) #

Article 25(Treatment of Persons under Medical Treatment and Custody) #

Article 25-2(Treatment of Candidates for Medical Treatment and Custody) #

Article 25-3(Prohibition on Isolation and Other Restrictions) #

Article 26(Interviews) #

Article 27(Viewing Television) #

Article 28(Medical Treatment of Patients) #

Article 29(Payment of Compensation for Labor) #

Article 30(Petitions for Better Treatment) #

Article 31(Checkup on Operational Status) #

Article 31-2(Treatment of Persons Detained for Psychiatric Evaluation) #

Article 32(Probation) #

Article 33(Matters to Be Observed by Probationer) #

Article 33-2(Detention and Detention Period) #

Article 34(Duty of Probationer to Report) #

Article 35(Termination of Medical Treatment and Custody) #

Article 36(Cancellation of Provisional Termination of and Re-Performance of Medical Treatment and Custody) #

Article 36-2(Registration with Mental Health Centers of Persons Released from Medical Treatment and Custody Facilities) #

Article 36-3(Outpatient Treatment) #

Article 36-4(Cooperation between Probation Offices and Mental Health Centers) #

Article 37(Medical Treatment and Custody Deliberation Committee) #

Article 38(Grounds for Disqualification) #

Article 39(Dismissal of Members) #

Article 40(Review) #

Article 41(Resolutions and Decisions) #

Article 42(Objection to Committee Member) #

Article 43(Application for Review by Prosecutor) #

Article 44(Application for Review by Person under Medical Treatment and Custody) #

Article 44-2(Order of Medical Treatment When Sentence of Punishment Is Suspended) #

Article 44-3(Pre-Judgement Investigation) #

Article 44-4(Diagnosis of Expert) #

Article 44-5(Matters to Be Observed) #

Article 44-6(Execution of Order of Medical Treatment) #

Article 44-7(Designation of Medical Treatment Institution) #

Article 44-8(Invalidation of Suspension of Sentence) #

Article 44-9(Burden of Expenses) #

Article 45(Prescription of Medical Treatment and Custody Application) #

Article 46(Prescription of Medical Treatment and Custody) #

Article 47(Sentence of Medical Treatment and Custody and Suspension of Qualification) #

Article 48(Nullification of Medical Treatment and Custody) #

Article 49(Calculation of Period) #

Article 50(Special Rules for Persons Subject to Application of Martial Law) #

Article 50-2(Receipt of Donations) #

Article 51(Other Acts Applicable Mutatis Mutandis) #

Article 52(Penalty Provisions) #