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ACT ON THE INTERNATIONAL TRANSFER OF SENTENCED PERSON

Act on the International Transfer of Sentenced Person Amended by Act No. 8728, Dec. 21, 2007

Chapter 1 General Provision

Article 1 (Purpose)

Regarding a Korean national, or the like, who has been in prison after being sentenced in the final adjudication of an imprisonment penalty in a foreign country and a foreign national, who has been in prison after being sentenced in the final adjudication of an imprisonment in Korea, the bill stipulates the requirements and procedures necessary for the transfer of sentenced person in order to promote rehabilitation and their smother social reintegration.

Article 2 (Definition) Definitions of terms used in this Act shall be as follows:

1. "Sentence of imprisonment" means any punishment or measure equivalent to the deprivation of liberty and imprisonment without labor ordered by a foreign court for acceptance of transfer, and imprisonment without labor for transfer of entrustment.

2. "Acceptance of Transfer" means accepting from a foreign country the transfer of a Korean national (hereinafter referred to as " prisoner to be accepted") who is sentenced to the final adjudication of the foreign punishment in the foreign country based on the Convention, and is detained as its execution.

3. "Transfer of Entrustment" means entrusting a foreign country in executing the final adjudication upon transferring from Korea to the foreign country a foreign national (hereinafter referred to as "prisoner to be transferred") who is sentenced to the final adjudication of an imprisonment with labor, and is detained in Korea as its execution.

4. "International Transfer of Sentenced Person" means Acceptance of Transfer and Transfer of Entrustment.

5. "Foreigner" means a person who has the nationality of a foreign country which concludes the Convention and Treaties (hereinafter referred to as "Convention), and a person whom the member country deems to be a national based on the Convention. Article 3 (Relations with Convention)

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The Parties undertake to afford each other the widest measure of cooperation in respect of the transfer of sentenced persons in accordance with the provisions of this Act and the Convention. Where there exist in the Convention any provisions different from this Act concerning the transfer of the sentenced persons, the relevant provisions shall govern.

Article 4 (Receiving and Delivery of the Documents) The Minister of Foreign Affairs issues documents and notices on requests for acceptance of transfer and acceptance of entrustment between Korea and a member country, required for compliance with the Convention. It is, however, provided that the Justice Minister shall issue the above-mentioned documents if the Minister of Foreign Affairs agrees to the deputation in the case of urgency or under any other particular circumstances.

When the Minister of Foreign Affairs receives a request for acceptance of transfer or acceptance of entrustment from a member country, the Minister shall attach any relevant documents to the request and send the documents to the Justice Minister.

Chapter II. Transfer of Sentenced Person Deliberation Committee Article 5 (Establishment)

There shall be established a Transfer of Sentenced Person Deliberation Committee (hereinafter referred to as the "Committee") under the Minister of Justice in order to deliberate the matters concerning International Transfer of Sentenced Person.

The Committee shall be composed of not less than 5 but not more than 9 members, including chairman.

The Vice Minister of Justice shall be the chairman of the committee, members shall be appointed or commissioned by the Minister of Justice from among the below enumerated persons.

1. Those who are qualified as judge, public prosecutor or attorney-at-law 3

2. Those who are or were in a position of officer at the Ministry of Justice

3. Other those who have extensive learning and experience in the issue of transfer of sentenced person

Article 6 (Term of Members)

The terms of office of members shall be two years, and they may be renewable. Provided, That public officials shall remain for the term of their position. Article 7 (Decommission and Dismiss)

When a member falls under any of the following subparagraph, the Minister of Justice shall dismiss or decommission a member of the Committee.

1. Where he has much difficulty in performing his duties for mental or physical trouble.

2. When he is deemed unfit for a member due to the neglecting his duties or performing the act of damaging his dignity as a member.

Article 8 (Deliberation)

The Committee shall, upon receiving a request for transfer review from the Minister of Justice, review the matters as prescribed in Article 11(1) or Article 23(1) on the materials presented for the deliberation and the necessity of acceptance of transfer and transfer of entrustment. When the Committee conducts the review as prescribed in paragraph (1) on the necessity, the Committee shall consider the public security and order of the Republic of Korea, public interests, and rehabilitation and social reintegration of the prisoner to be accepted and the prisoner to be transferred. When the Committee conducts on the necessity of transfer of entrustment, the Committee shall consider the investigation into the other cases or a necessity for trial and the possibility of re-entry.

Article 9 (Decision)

A meeting of the Committee shall make a decision with the attendance of a majority of the total members and with a concurrent vote of a majority of those present.

A meeting of the Committee may not be opened to the public 4

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

The Committee shall send the decision to the Minister of Justice together with the relevant documents.

Article 10. (Composition and Operation, etc.)

Matters concerning composition and operation of expert Committees other than provisions of this Act shall be determined by the Ordinance of the Ministry of Justice. Chapter III. Acceptance of Transfer

Article 11 (Requisites of Transfer)

An acceptance of transfer requires the following conditions, in particular, to be met:

1. The criminal offence must be punishable not only in the sentencing state (the state in which the judgment was handed down and where the sentenced person is serving their sentence) but also in the Republic of Korea. Cases where one offence of crime of a number of offences is punishable in Korea shall also be included.

2. The judgment must be final and enforceable.

3. Prior to the transfer of an offender to Korea, the offender shall consent to such transfer.

Either one of the officials stipulated in the following items shall confirm the consent of a prisoner to be accepted. Provided, the official shall notify that the consent of the prisoner to be accepted, once verified by the verifying officer under paragraph(3), is irrevocable.

1. Officials designated by the Justice Minister

2. Korean ambassadors, ministers, consuls or officials designated by them, stationed in foreign countries, authorized by the Justice Minister;

3. Persons designated by a person referred to in the paragraph (2) 5

Consent of a prisoner to be accepted, once verified by the verifying officer under Paragraph (2), is irrevocable.

Article 12 (Application for Review)

When a foreign country requests that Korea accept the transfer of a convict, and the Justice Minister finds it appropriate to accept the request, the Justice Minister shall send the relevant documents to judgment committee and order the committee to review whether or not the case allows for the acceptance of the transfer.

When the Minister of Justice deems it necessary in relation to the application for review to the Committee under paragraph (1), he may order the director of district public prosecutors' office or the head of branch office, etc. (hereinafter referred to as " Director prosecutor") deemed to be considerable to take the necessary disposition such as preparation and supplement, etc. of the related data and forwarding.

The director prosecutor, etc. shall, upon receiving the order under the provisions of paragraph (2), order the public prosecutors under his jurisdiction to take the necessary dispositions.

The public prosecutors shall, upon receiving the orders under paragraph (3), where deemed to be necessary, order the judicial police officer to prepare the related data.

Article 13(Order for Acceptance of Transfer, etc.) If the Minister of Justice deems, upon receiving the decision for acceptance of transfer, that it is reasonable to comply with acceptance of transfer and the requisites for acceptance of transfer are met, he shall send the written request to a foreign country, or shall accept the request from a foreign country. When the Minister of Justice transfers the prisoner to be accepted, he shall order the director prosecutor, etc. deemed to be considerable to transfer in writing. And relevant document shall be attached to the order. The document, referred to in the preceding item, shall describe the following items, and it shall be signed and sealed by the Justice Minister.

1. The nationality, name, gender, date of birth of the prisoner to be accepted 6

2. The name of the foreign country,

3. The name of the crime,

4. The prison term and kind of the foreign punishment,

5. The time remaining to be served,

6. The date of order,

7. Other requisites If an order to transfer of sentenced person is cancelled after making an order of transfer, upon the request of a foreign country under paragraph (2), or after confirming the consent of the prisoner under Article 11 (2), the Minister of Justice shall notify the prisoner in writing.

Article 14 (Issuance of Warrant)

Director prosecutor, etc. shall, upon receiving an order for acceptance of transfer under Article 13(2), issue an order to a public prosecutor under his jurisdiction to take any proper measures for acceptance of transfer without delay.

The public prosecutor shall, upon receiving an order to take any proper measures for acceptance of transfer under paragraph (1), issue a warrant for acceptance of transfer, transfer the prisoner from a foreign country, and instruct the execution of the sentence of the imprisonment. The warrant for acceptance of transfer under paragraph (2) shall include the followings and it shall be signed and sealed by the public prosecutor.

1. The nationality, name, gender, date of birth and residence of the prisoner to be accepted

2. The name of the foreign country

3. The name of the crime

4. The prison term and kind of the foreign punishment

5. The place where the prisoner is taken into custody, and the time remaining to be served

6. The date of issuance

7. Other requisites 7

A certified copy of the written decision, and the certified copies of relevant documents proving that the sentence has been made by a foreign country shall be attached to the warrant for acceptance of transfer under paragraph (2). The warrant for acceptance of transfer issued under paragraph (2) shall have the same force as an execution warrant.

The provision of procedure for execution of warrant for acceptance of transfer in the Part I, Chapter 9 of Criminal Procedure Act shall be applied mutatis mutandis to the execution of the warrant for transfer of sentenced person. Article 15 (Effect of Foreign Judgment)

The effect of a sentence of imprisonment under this Act shall be to authorize the continued enforcement by the State of the sentence concerned imposed by the sentencing state concerned in its legal nature and duration, with due regard to any remission of sentence accrued in the sentencing state, but imposing a sentence following conviction by that court.

Article 16 ( Term and Execution)

The term of the sentence of imprisonment of the prisoner to be accepted (hereinafter referred to as "accepted prisoner") under Article 14(2) shall be the foreign punishment sentenced in the final adjudication. Provided, When the sentence of imprisonment is an imprisonment for a definite term, the term shall not be exceed 25 years, and if the foreign punishment is life imprisonment, life imprisonment shall apply.

When the sentence of imprisonment is executed under paragraph (1), the accepted prisoner shall be given credit toward service of the sentence for any days from the date which the execution of the foreign punishment is initiated in the foreign country to the final date of which the accepted prisoner is deemed to be detained, and the date which has spent for the transfer. If the foreign punishment is equivalent to a punishment with labor, it shall be executed under Article 67 of Criminal Act, and if it is equivalent to an imprisonment, it shall be executed under Article 68 of Criminal Act. Article 17 ( Applicable Laws)

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The provisions concerning the execution of the sentence of imprisonment including parole, pardon and reduction of punishment, etc. for the acceptance of prisoner shall be determined by the related laws of the Republic of Korea such as Criminal Act and Criminal Administration Act.

Article 17 (Applicable Laws)

(Amended, Dec. 21, 2007)

The provisions concerning the execution of the sentence of imprisonment including parole, pardon and reduction of punishment, etc. for the accepted prisoner shall be determined by the related laws of the Republic of Korea such as Criminal Act and Act on the Execution of Sentence and Treatment of Prisoner Article 18 (Restriction on Revocation of Public Prosecution) If the foreign punishment of the accepted prisoner is under execution, and the execution of the foreign punishment has terminated, or determined not to execute, a public prosecutor may not revoke the public prosecution for the same crime. Article 19 (Cancellation of Foreign Decision, etc.) If the final adjudication (all if there are two or more) with regard to the accepted prisoner in a foreign country is cancelled and its execution becomes impossible, and the foreign country informs the Justice Ministry, the Justice Minister shall cancel the order pursuant to Article 13 (2) in writing, and order a director prosecutor who has jurisdiction over the district where the correctional institutions, juvenile reformatory and detention house where the accepted prisoner is detained, or over the district to release the accepted prisoner. The director prosecutor, etc. shall, upon receiving an order to release the prisoner pursuant to the preceding item from the Minister of Justice, order a public prosecutor under his jurisdiction to immediately release the accepted prisoner.

The public prosecutor shall, upon receiving an order to release the prisoner pursuant to the preceding item, direct a head of correctional institution, etc. to release the accepted prisoner.

Article 20 (Modification of Prison Term and Kind) 9

The minister of Justice shall, upon receiving a notice on modification of kind and term of the foreign punishment based on grounds of the reduction of the punishment and other reasons, modify the order of acceptance of transfer under Article 13(2) in writing without delay, and order the director prosecutor, etc. who has jurisdiction over correctional institution, etc. where the prisoner is being detained to execute the sentence in accordance with modified kind and term of the punishment.

The provision s of Articles 13 and 14 of this Act shall apply mutatis mutandis to the modification and execution of acceptance of transfer order under paragraph (1).

Article 21 (Notification to Foreign Country)

The Minister of Justice shall immediately notify the foreign country if the status of the prisoner comes under either of the following items:

1. The execution of the punishment of sentenced person has terminated or the prisoner is deemed not to be subject to the execution;

2. The execution of the punishment has been remitted.

3. The accepted prisoner escapes before the execution terminates. Chapter IV. Transfer of Entrustment

Article 22 (Notification of Convention)

When a foreigner is detained in the correctional institution, etc. after being sentenced imprisonment in the final adjudication, the head of correctional institution, etc. shall notify the provisions of the Convention to the foreigner. Article 23 (Requisites of Transfer)

A transfer requires the following conditions, in particular, to be met:

1. The criminal offence sentenced in the final adjudication in Korea must be punishable not only in the Republic of Korea (the state in which the judgment was handed down and where the sentenced person is serving his sentence) but also in the foreign state (the home state of the sentenced person, to which they are to be transferred to continue serving their sentence). Provided, case where 10

one offence of crime of a number of offences is punishable in the foreign state shall also be included.

2. The judgment issued by the Republic of Korea must be final and enforceable.

3. Prior to the transfer of an offender to the foreign country, the offender shall consent to such transfer.

4. If the sentence of imprisonment sentenced in the final adjudication of Korea has been imposed concurrently with a fine, minor fine, confiscation, or collection, the execution of the crime may be terminated or suspended. Public prosecutors designated by the director Prosecutor, etc. ordered by the Minister of Justice to verify shall confirm the consent of a prisoner stipulated in paragraph 1, subparagraph 3 of this Act. In this case, he shall notify the prisoner to be transferred that the consent, once verified by the verifying officer, is irrevocable.

Consent of the prisoner to be transferred, once verified by the verifying officer under paragraph (2), is irrevocable.

Article 24 (Verification of Consent of Prisoner)

The head of the jail etc. shall allow the request if either one of the officials stipulated in the following items requests an interview with an entrusted convict detained in the correctional institution to verify whether or not the convict agrees to the entrusted transfer within the scope of the laws and regulations of the Republic of Korea including Criminal Administration Act;

1. Consular official or an official in charge of the consular missions

2. Other persons designated by a member country of the Convention Article 24 (Verification of Consent of Prisoner)

(Amended, Dec. 21, 2007)

The head of correctional institution, etc. described in Article 2, subparagraph 4 of Act on the Execution of Sentence and Treatment of Prisoner shall allow the request if either one of the officials stipulated in the following items requests an interview with a prisoner to be transferred detained in the correctional institution to verify whether or not the prisoner agrees to the entrusted transfer within the scope of the laws and regulations of the Republic of Korea including the same Act.

1. Consular official or an official in charge of the consular missions

2. Other persons designated by a member country of the Convention 11

Article 25 (Application for Review )

When a foreign country requests that Korea accepts the transfer of a prisoner, and the Justice Minister finds it appropriate to accept the request, the Justice Minister shall send the relevant documents to judgment Committee and order the Committee to review whether or not the country allows the acceptance of the transfer.

When a prisoner to be reviewed for transfer of entrustment to a foreign country has been sentenced of imprisonment at the military tribunal, the Minister of Justice shall have consent of the Minister of National Defense. And if it is deemed to be necessary for the request for review, he may have consultation with the Minister of National Defense.

The provision of Article 12 (2) or (4) of this Act shall apply mutatis mutandis to request for transfer review under paragraph (1).

Article 26 (Order of Transfer of Entrustment, etc. ) If the Minister of Justice deems, upon receiving the decision for transfer of entrustment, that it is reasonable to comply with transfer of entrustment and the requisites for transfer of entrustment are met, he shall send written request to a foreign country, or shall accept the request from a foreign country. When the Minister of Justice transfers the prisoner to be transferred, he shall order the director prosecutor, etc. deemed to be considerable to transfer in writing. And relevant document shall be attached to the order. The document, referred to in the preceding item, shall describe the following items, and it shall be signed and sealed by the Justice Minister

1. The nationality, name, gender, date of birth and residence of the prisoner to be transferred,

2. The name of the foreign country,

3. The name of the crime,

4. The prison term and kind of the punishment,

5. The place of transfer,

6. The date of warrant issuance, and

7. Other requisites 12

When the Minister of Justice issues a transfer of entrustment order under paragraph (2), he shall issue a takeover warrant and send it to the Minister of Foreign Affairs, and request the Minister of Foreign Affairs to send it to a foreign country.

If an order to transfer of sentenced person is cancelled after making an order of transfer, upon the request of a foreign country under paragraph (2), or after confirming the consent of the prisoner under Article 23 (2), the Minister of Justice shall notify the prisoner to be transferred in writing. Article 27 (Issuance of Warrant)

When a director prosecutor etc. receives an order for transfer of entrustment under Article 26 (2), he shall issue an order to a public prosecutor under his jurisdiction to take any proper measures for transfer of entrustment without delay.

When the public prosecutor receives an order to take any proper measures for transfer of entrustment, he shall issue a transfer warrant to the head of correctional institution, etc. where the prisoner is detained, and instruct transfer of entrustment.

The transfer warrant under paragraph (2) shall include the followings, and it shall be signed and sealed by the public prosecutor.

1. The nationality, name, gender, date of birth and residence of the prisoner to be transferred,

2. The name of the foreign country,

3. The name of the crime,

4. The prison term and kind of the punishment,

5. The prison term which has been served, or the period of detention

6. The place of transfer,

7. The date of warrant issuance, and

8. Other requisites Article 28 (Transfer by Head of Correctional Institution, etc.) If the head of correctional institution, etc., who receives directions to deliver the prisoner under Article 27 (2), receives a request for the transfer of a prisoner by the 13

public officials of the requesting state who present the take-over warrant, he shall deliver the prisoner to be transferred at the place described in the transfer warrant. Article 29 (Termination of Execution)

The execution of the punishment sentenced in the final adjudication for the prisoner to be transferred (hereinafter referred to as "transferred prisoner") under Article 28 shall, when the execution of the foreign punishment is terminated (or deemed to be terminated) under the equivalent laws of a foreign country, be deemed to have been terminated.

Article 30 (Notification to Foreign Country)

The Minister of Justice shall immediately notify the foreign country if the status of the prisoner comes under either of the following items:

1. The foreign punishment sentenced in the final adjudication with regard to the transferred prisoner is cancelled in the process of the trial, or the punishment is deemed not to be subject to the execution, or the kind of the punishment or the prison term changes.

2. The transferred prisoner is granted pardon. Article 31 ( Transfer of Prisoner Detained in Military Prison) When the Minister of Justice transfers a prisoner detained in a military prison, he shall notify it to the Minister of National Defense before issuing an order for transfer of entrustment.

If the Minister of National Defense receives notification as referred to in paragraph (1) from the Minister of Justice, he shall order Chief of Imperial General Staff concerned to detain the transferred prisoner in the correctional institution, etc. Provided, it is deemed that it is signed by the Minister of Justice under Article 2 (4) of Military Criminal Administration Act. Chapter V. Supplementary Provision

Article 32 (Request for Approval for Transit Convoy) 14

Where there exists a necessity for going through the territory of the third state in convoying the accepted or transferred prisoner into the country from a foreign state, the Minister of Justice may request the relevant third state to render an approval for transit convoy.

In cases where a foreign state requests the Minister of Justice through a diplomatic channel to approve the convoy of a prisoner who is detained in the foreign correctional institution, etc. sentenced in the final adjudication by the foreign public officials from another foreign state, passing through the territory of the Republic of Korea, if such request is deemed to have a proper reason, the Minister of Justice may approve it: Provided, if the act which the person who is the object of transfer request, committed does not constitute any crime under the Act of the Republic of Korea, this shall not apply. The provision of Article 4 (1) and (2) shall apply mutatis mutandis to the request for approval for transit convoy, and receiving and sending of the relevant documents.

Article 33 (Cost)

An accepted prisoner delivered from a foreign country shall bear the cost of the transportation, which Korea has paid out of the cost for sending the prisoner under escort from the foreign country to Korea. If it is obvious that the accepted prisoner is unable to pay the entire amount due to poor financial status, the Justice Minister may issue an exemption of the cost.

Article 34 (Going through Prosecutor General)

Any order to the director of public prosecutors' office, etc. by the Minister of Justice under the provisions of this Act or any recommendation, report or documents forwarding to the Minister of Justice by the director of public prosecutors' office, the head of branch office, or public prosecutors shall go through the Prosecutor General. ADDENDA

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Article 1 (Enforcement Date)

This Act shall enter into force on the date of its promulgation. (Transitional Measures concerning Korean National and Foreign National) This Act shall be applicable to Korean national who is detained in the foreign country, and foreign national detained in Korea at the time this Act enters into force. (Transitional Measures concerning Transferred Prisoner Detained In Correctional Institution, etc.)

The head of correctional institution, etc. where the transferred prisoner is detained shall notify the provisions of the Convention to the transferred prisoner at the time this Act enters into force.

ADDENDA (Act on the Execution of Sentence and Treatment of Prisoner) Amended by Act No. 8728, Dec. 21, 2007

Article 1 (Enforcement Date)

This Act shall enter into force 1 year after the date of its promulgation. Article 2 through 4 Omitted.

Article 5 (Relation with Other Acts and Subordinate Statutes) through Omitted

Act on International Transfer of Sentenced Person is amended as follows. Criminal Administration Act described in Article 17 shall change into Act on the Execution of Sentence and Treatment of the Prisoner. "The head of the jail, etc." described in Article 24 shall change into "the head of correctional institution, etc.", and " to the jail, etc" into " to correctional institution, etc.", 16

and " Criminal Administration Act" into " same Act" respectively under Article 2 subparagraph 4 of Act on the Execution of Sentence and Treatment of the Prisoner. through Omitted

Article 6 Omitted