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  • Criminal procedure
  • Habeas corpus
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Habeas corpus

Any individual who is confined unjustly at a confinement facility as a result of administrative measure or by another individual (“Confinee”) of his/her legal agent/guardian/lineal relations/spouse/siblings/co-habitant/employer, or employee at a confinement facility (“Applicant”) may apply to the court for relief against the head or manager of the facility that has custody of the Confinee (“Confiner”).
For example, anyone who is involuntarily confined at a national/public hospitals, prayer house, etc., or his/her legal agent may request relief.

The court designates a hearting date which is advised to the Applicant, the Confiner and Confinee to make an appearance in the court.

After its deliberation, if the court finds that the confinement of the Confinee is illegal or that there is no longer a need for the confinement, it orders the Confinee to be immediately released.

Court of jurisdiction for the application for relief/method

The application for relief may be made to the district court or the branch thereof which has jurisdiction over the Confinee, the address of the confinement facility, the residence or current of address of the Confinee.

The application for relief must be done through a document that sets forth: (1) the Applicant’s address and name; (2) the Confiner’s name, address and other information to identify the Confiner; (3) Confinee’s name; (4) A summary of the relief sought; (5) Why confinement is illegal and (6) the place of confinement.

Application for appointment of public defender

In the event the Applicant or the Confinee is unable to individually appoint a defense counsel because of economic difficulty or other reasons, he/she may request the court for a public defender pursuant to Article 33(2) of the Criminal Procedure Act.

Duties of Confiner

Duty to submit answer
Upon receiving a copy of the application for relief, the Confiner shall, by no later than the hearing date, submit an answer that has the following information: (1) the name, address of the Confinee as well as any other information that could identify the Confinee; (2) the date and place of confinement of the Confinee; (3) the reason for confinement; (4) the need to continue confinement; (5) expected end date of the confinement; and (5) an answer that contains particulars about the confinement.
If the Confiner drafts the answer falsely or if he/she refuses to submit one, he/she may become subject to imprisonment of up to one year year, up to 3 years of suspension of license, or a fine of up to 10 million won.
Duty to attend the hearing
Upon receiving the hearing notice from the court, the Confiner must make appearance at the designated place and time.
In the event the Confiner fails to attend the hearing without a justifiable cause, the court may assess a fine of up to 5 million won. If the Confiner continues to fail to attend even after the assessment of fines, it may imprison the Confiner for up to 7 days.
Duty to have the Confinee attend hearing
If the court has summoned the Confinee to the hearing, the Confiner must bring the Confinee to the court and hold custody of the Confinee within the premises of the court until the hearing is over.
If the Confiner fails to have the Confinee attend the hearing despite the court’s request, the Confiner shall advise the court of a justifiable cause for the failure to have the Confinee attend the hearing.

Provisional release and protection

Provisional release
If there is an urgent need to protect the bodily harm, etc., which could arise in the event of continued confinement of the Confinee, the Applicant may request the court for a provisional release of the Confinee even prior to the court’s final decision.
If the Confinee fails to attend the hearing or fails to comply with the conditions provided at the time the decision for provisional release was made, the court may cancel the decision for provisional release and seek custody of the Confinee.
The court may order the Confiner to move the Confinee from the current confinement facility to same-type or similar confinement facility in order to protect the safety of the Confinee even prior to making its final decision.
The Applicant or Confinee may request for a modification of cancellation of the order for protection as described above.

Cost of trials

The Applicant must pay in advance for the costs necessary for the trial. The costs include the cost of service, cost of a witness to make appearance, costs needed for the professional diagnosis of the Confinee’s psychological/mental state and the cost of transporting the Confinee to the provisional confinement facility.

In the event the Applicant cannot afford to pay the costs due to financial difficulties, he/she may use the legal aid program.

The court may have the party losing the trial to bear all or partial costs of the trial.