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  • Criminal procedure
  • Habeas corpus
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Habeas corpus

Any individual who is unlawfully confined at a confinement facility as a result of administrative disposition or by another individual (hereinafter referred to as “the person confined”) of his/her legal representative, guardian, lineal relations, spouse, siblings, co-habitant, employer, or employees at a confinement facility (“petitioner”) may apply to the court for relief against the head or manager of the facility (“the person confining”) where the person confined is in custody.

For example, anyone who is involuntarily confined at a national or public hospitals, prayer house, etc., or his/her legal representative may file a petition to seek relief.

The court sets a hearing date and notices the relief petitioner, the person confining and the person confined of the date to make sure they appearance in the court.

After hearing arguments, if the court determines that the person's confinement is unlawful or that there is no longer a need for confinement, it orders immediate release of him or her.

The court with jurisdiction over the petition for relief and proceedings

The petition for relief may be filed to the district court or the branch thereof which has jurisdiction over the person confined, where the confinement facility is located or the person confined currently resides.

The petition for relief must include following: (1) the petitioner’s address and name; (2) the confiner’s name, address and other information to identify the person confining; (3) the person confining’s name; (4) summary of the relief sought; (5) the reasons that the petitioner argues that confinement is unlawful and (6) the place of confinement.

Application for a public defender

If the petitioner or the person confined is unable to afford to hire his or her own private defense attorney due to financial constraints or other reasons, he/she may file an application for public defender to the court pursuant to Article 33(2) of the Criminal Procedure Act.

Duties of Confiner

Duty to submit the answer
Upon receiving a copy of the petition for relief, the person confining shall, by no later than the hearing date, submit an answer that has the following information: (1) the name, address of the person confined as well as any other information that could identify the person confined; (2) the date and place of confinement of the person confined; (3) the reasons 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 person confining submits the answer with false fact or refuses to submit it, he/she may be punished with imprisonment of one year or less, suspension of license for three years or less, or fine of 10 million KRW or less.
Duty to attend the hearing
Upon receiving the notice of hearing date from the court, the person confining must make an appearance at the designated time, place, and day.
If the person confining fails to attend the hearing without a justifiable cause, the court may impose a fine of 5 million KRW or less. If the person confining continues not to appear in court even after being charged of fines, he or she may be imprisoned up to seven days.
Duty to have the person confined attend hearing
If the court summons the person confined to hearing, the person confining must accompany the person confined to the court and superintend him or her within the premises of the court until the hearing is over.
If the person confining fails to have the person confined attend the hearing even though the court summoned, the person confining shall explain the court of a justifiable cause for the failure to have the person confined attend the hearing.

Provisional release and protection

Provisional release
If there is an urgent need to protect the liberty of the person confined and prevent bodily harms, etc., caused by continued confinement, the petitioner may request the court for a provisional release of the person confined even prior to the court’s final decision.
If the person confined fails to attend court hearing or to comply with the conditions provided at the time the decision for provisional release is rendered, the court may cancel the disposition for provisional release and seek custody of the person confined.
Protection of personal liberty
The court may order the person confining to admit the person confined from the current facility to same or similar type of facility in order to protect the liberty of the person confined even prior to its' formal disposition.
The petitioner or the person confined may seek to modify or cancel the court's disposition for protection of liberty.

Cost of trials

The petitioner must pay in advance for the costs incurred throughout the proceedings. The costs include service fees, witness fees, expert fees for professional diagnosis of the person confined's psychological and mental state and the cost of transporting him or her to the provisional facility.

If the petition is not able to 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 proceedings.