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PRIVATE INTERNATIONAL ACT

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CRIMINAL COMPENSATION ACT

Act No. 494, Aug. 13, 1958

Amended by Act No. 1121, Aug. 13, 1962

Act No. 1868, Jan. 16, 1967

Act No. 2787, Dec. 15, 1975

Act No. 3465, Dec. 17, 1981

Act No. 3956, Nov. 28, 1987

Act No. 4935, Jan. 5, 1995

Act No. 8435, May 17, 2007

Article 1 (Requisites for Compensation)

(1) In case any person who has been acquitted by a decision of not guilty in the ordinary procedure, the retrial proceedings or extraordinary appeal procedure as stipulated in the Criminal Procedure Act, has been placed under detention in pendency, one may claim to the State for the compensation for such detention in accordance with this Act. (2) In case any person who has been acquitted by a decision of not guilty in the appeal after the recovery of right to appeal, the retrial proceedings or the procedure of extraordinary appeal, had been placed under detention or had been executed the penalty by the original judgment, he may claim for the compensation for such detention or execution of sentence. (3) The custody as prescribed in Article 470 (3) of the Criminal Procedure Act and arrest as prescribed in Articles 473 to 475 of the said Act shall be deemed as detention or execution of sentence for the purpose of applying the provisions of Paragraph (2). Article 2 (Claim for Compensation by Heir)

(1) In case a person, who may claim compensation under Article 1, has died without making the claim, his heir may claim it.

(2) In case a person died before one is found not guilty in trial procedure or extraordinary appeal procedure, it shall be regarded, in a claim for compensation, that the judgment was rendered not guility when he died.

Article 3 (Cases of Requiring no Compensation)

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In the cases falling under any of the following Subparagraphs, the court may dismiss on part or all of the claim for compensation at its own discretion:

1. In case judgment of not guilty is delivered in accordance with Article 9 and Article 10 (1) of the Criminal Act;

2. In case it is recognized that a defendant has been indicated, detained in pendency or has received judgment of guilty through his making a false confession or making evidence for judgment of guilty, in order to induce misjudgment in the course of investigation or trial; and

3. In case a defendant has received, with one judgment of court, judgment of not guilty upon one of the concurrent crimes, while judgment of guilty upon the other of the concurrent crimes.

Article 4 (Contents of Compensation)

(1) In case of compensation for detention, compensation at the rate of 5,000 Won or more but not more than the amount determined by the Presidential Decree per day on the basis of the number of such days shall be issued. (2) When the court has to calculate the amount of compensation under Paragraph (1), it shall take into consideration kinds and length of detention, damage of proprietary nature, loss of possible advantage, mental suffering, physical injury, intent or fault of the police, the prosecution, the court and other agencies, and all other circumstances.

(3) In case the defendant has been executed, in addition to compen- sation for the detention before the execution, not more than thirty million Won as determined by the court, taking into consideration all the circumstances, shall be issued, provided that in case the amount of damage of proprietary nature resulting from the death of the defendant has been certified, the amount, too, shall be compensated.

(4) In case of compensation of the execution of fine or minor fine, in addition to the fine or minor fine already collected, the amount calculated at the statutory rate of interest under Article 379 of the Civil Act for the number of dates from the next date of collection date thereof to the date of determining compensation shall be paid. (5) In case of compensation for the execution of detention in workhouse, the provision of Paragraph (1) shall be applied mutatis mutandis. (6) In case of compensation for execution of confiscation, the items confiscated shall be returned; in case the items has already been disposed of, the price of the items at the time of determining the compensation shall be paid; and in case of compensation for the money collected in addition, the amount calculated at 12

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the statutory rate of interest under Article 379 of the Civil Act for the number of dates from the next date of collection date thereof to the date of determining compensation shall be paid. Article 5 (Relations to Compensation for Damages) (1) This Act shall not prohibit those persons who are to receive compensation under this Act from claiming compensation for their damages in accordance with the provisions of other Acts.

(2) In case those persons, who are to receive compensation under this Act, have received compensation for damages in accordance with the provisions of other Acts, for the same cause, when the amount of the compensation for damages equals or exceeds that of the compensation under this Act, the compensation under this Act shall not be paid. In case the amount of the compensation for damages is less than that of the compensation under this Act, the amount of the compensation under this Act shall be determined, deducting the amount of the compensation for damages.

(3) In case those persons, who are to receive compensation for damages in accordance with the provisions of other Acts, have received compensation under this Act, for the same cause, the amount of the compensation for damages shall be determined, deducting the amount of the compensation under this Act. Article 6 (Competent Court)

The claim for the compensation shall be lodged in the court which has passed judgment of not guilty.

Article 7 (Period of Claim for Compensation)

Claim for compensation shall be made within one year from the date when the judgment of not guilty became final.

Article 8 (Methods of Claim for Compensation)

(1) In order to claim for the compensation, a written claim for the compensation, a copy of the written judgment, and a certificate showing that the judgment is final, shall be submitted to the court.

(2) In the written claim, the following items shall be stated:

1. Claimant s original domicile, domicile, name and date of birth; and

2. Facts, i.e. the cause for the claim and the amount. Article 9 (Presumptive Proof of Heir)

In case the heir claims for the compensation, one shall submit credible evidence establishing his relations with the principal and the existence of heir of the same rank.

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Article 10 (Claim for Compensation by Proxy)

The claim for compensation may be made by proxy.

Article 11 (Effect of Claim for Compensation by Heir) (1) In case there are several heirs of the same rank who may claim for the compensation, when one of the heirs has claimed for the com- pensation, it shall be regarded that one has made the claim for all other heirs.

(2) In case of Paragraph (1), those heirs other than the claimant may participate in the claim procedures as joint claimants.

(3) In case the court has learned that, in case of Paragraph (1), there are other heirs of the same rank who may claim for the compensation, the court shall immediately inform all other heirs that the claim has been filed. Article 12 (Cancellation of Claim for Compensation) (1) In case there are several heirs of the same rank, the heir who has made the claim shall not cancel the claim without consent of all other heirs. (2) In case the claim has been cancelled, those persons who have the right to claim compensation shall not claim again.

Article 13 (Trial of Claim for Compensation)

(1) Claim for compensation shall be tried in a collegiate body of the court. (2) With regard to claim for compensation, the court shall make decisions after hearing opinions of the public prosecutor concerned and claimants. (3) The exemplified copies of the decisions under Paragraph (2) shall be sent to the public prosecutor concerned and claimanst. Article 14 (Matters to be Investigated ex officio) With regard to the cause of claim for compensation, i.e., days of detention or contents of execution of sentence, the court shall conduct an investigation ex officio.

Article 15 (Decisions to Reject Claim for Compensation) In case procedures for claim are in violation of the forms as prescribed in laws and regulations and cannot be corrected and supplemented, in case the claimant does not comply with the correction and supplement order by the court or in case the claim has been made after the lapse of the period under Article 7, the court shall dismiss the claim.

Article 16 (Decisions to Compensate or Dismiss Claims) (1) In case the claim for compensation is reasonable, a decision of compensation shall be made.

(2) In case the claim for compensation is not reasonable, a decision to dismiss the claim shall be made.

Article 17 (Effect of Decision)

In case there are several heirs of the same rank, the decision under 12

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Article 16 upon one of them shall be regarded as having been made upon all the heirs. Article 18 (Interruption and Succession of Claim for Compensation) (1) If a person who has claimed compensation dies or loses status of heir during the proceedings of claim for compensation, and there is no other claimant, the proceedings shall be interrupted.

(2) In case of Paragraph (1), the heir of the person who claimed the compensation or the heir of the same rank of such claimant, may succeed as claimant to the proceedings of the claim within two months.

(3) Toward those persons who have the right to succeed as claimants to proceedings under Paragraph (2) and who are determined as such by the court, the court shall without delay notify them that they succeed as claimants to the proceedings within the period under Paragraph (2).

(4) In case no request has been made by any claimant to succeed to the proceedings within the period under Paragraph (2), the court shall make a decision to reject the claim.

Article 19 (Appeal)

(1) No appeal shall be lodged against the decision of compensation. (2) Immediate appeal (hanggo) may be lodged against the decision to dismiss the claim for compensation.

Article 20 (Request for Payment of Compensation)

(1) Any person who intends to request payment of compensation shall submit a written request for payment of compensation to the Public Prosecution Administration corresponding to the court which has made the decision on the compensation. (2) The court s written decision on the compensation shall be attached to the written request.

(3) If a request for payment of compensation is not made within one year after the written decision on the compensation was delivered, the right thereof shall be lost. (4) In case there are several persons who have the right to receive the payment of the compensation, the request for payment of compensation made by one of them shall be regarded as having been made for all the persons.

Article 21 (Effect of Payment of Compensation)

In case there are several persons who have the right to receive com- pensation, the payment of the compensation to one of them shall have the effect to all the persons. Article 22 (Prohibition of Transfer and Seizure of Claim) The claim for compensation shall not be transferred nor be seized. This provision CRIMINAL COMPENSATION ACT

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shall also apply to the right for payment of compensation.

Article 23 (Applicable Provisions)

With regard to the decisions and immediate appeal under this Act, the provisions in the Criminal Procedure Act shall be applicable mutatis mutandis unless otherwise specified in this Act. With regard to period, it shall be the same.

Article 24 (Public Notice of Decisions on Compensation) (1) When decisions on compensation become final, the court shall make public notice of them within two weeks by publishing the gist of the decisions in the official gazette. In such case, when requested by the person who has been rendered decision on compensation, the court shall make public notice of the gist of the decisions in more than two kinds of daily newspaper chosen by such applicant, one time respectively, and shall make such public notice within thirty days after the date of request. (2) When a decision to dismiss claim for compensation has become final by the reason stipulated in former part of Article 5 (2),, the provisions of Paragraph (1) shall be applicable mutatis mutandis.

Article 25 (Cases of Judgment of Acquittal, etc.) (1) Those, who have received judgment of acquittal or dismissal of prosecution in accordance with the provisions of the Criminal Procedure Act, may claim compensation for the detention, when, if there had not been causes enough for passing judgments of acquittal or dismissing prosecution, there would have been conspicuous causes for receiving judgment of not guilty. (2) With regard to the compensation under Paragraph (1), the provisions concerning compensation for those who have received judgment of not guilty shall be applicable mutatis mutandis. With regard to the announcement of decisions on compensation, it shall be the same.

Article 26 (Compensation to Suspect)

(1) A person of those as suspects, of those under detention, who is subject to a disposition not to institute a public prosecution by a public prosecutor, may claim against the State for compensation for such detention (hereinafter referred to as suspect compensation ), except in case where there is any cause to make the disposition not to institute a public prosecution after the detention, and the disposition not to institute the public prosecution is not final, or is made under Article 247 (1) of the Criminal Procedure Act. (2) In cases which fall under any of the following Subparagraphs, suspect compensation may not be made totally or in part:

1. In case where it is recognized that a suspect has been placed under detention through his making of a false confession or fabricating evidence for judgment of guilty in order to induce misjudgment in the course of investigation or trial; 12

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2. In case where the investigation upon another fact has proceeded against a suspect in the course of detention and that fact constitutes offense; and

3. In case where there are special circumstances that if the compensation were made, it would be contrary to good morals or other public order. (3) In order to examine and determine a decision on the matters concerning suspect compensation, the Suspect Compensation Council (hereinafter referred to as Council ) shall be established in the District Public Prosecution Administration. (4) The Council shall be placed under the direction and supervision of the Minister of Justice.

(5) The jurisdiction, organization, operation and other necessary matters of the Council shall be provided for by the Presidential Decree. [This Article Newly Inserted by the Act No. 3956, Nov. 28, 1987] Article 27 (Claim, etc. for Suspect Compensation) (1) A person who intends to demand the suspect compensation shall make the claim to the Council of the District Public Prosecution Administration to which the public prosecutor who made a disposition not to institute a public prosecution belongs (or to the Council of the District Public Prosecution Administration to which the Branch Office is attached in case the public prosecutor who made such a disposition belongs to such Branch Office of the District Public Prosecution Administration).

(2) A person who makes a claim to the Council for suspect compensation under Paragraph (1), shall submit the compensation application form together with the documents certifying the fact that a disposition not to institute a public prosecution has been made. (3) Suspect compensation shall be claimed within one year from the date of having received notice of the public prosecutor s disposition not to institute a public prosecution. (4) The administrative litigation may be filed against the decision of the Council on a claim for suspect compensation after the judgment of the Minister of Justice has been made.

[This Article Newly Inserted by the Act No. 3956, Nov. 28, 1987] Article 28 (Applicable Provisions)

(1) The provisions of this Act concerning compensation to persons who are given verdicts of innocence shall be applicable mutatis mutandis within the scope not contrary to its nature except in cases that special provisions of this Act on suspect compensation are provided for.

(2) The provisions of this Act shall apply mutatis mutandis to compensation to persons who are given verdicts of innocence at military court or who receive a disposition not to institute a public prosecution by the prosecutor of the prosecution department of military court. In these cases, The Courts shall be deemed to be the Military Court , and similarly the Public Prosecution Administration shall be changed to the Prosecution Department of the Military Court , the Council to the District Council attached to the Special Council CRIMINAL COMPENSATION ACT

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under Article 10 (2) of the State Compensation Act and the Minister of Justice to the Minister of National Defense .

[This Article Newly Inserted by Act No. 3956, Nov. 28, 1987] Article 29 Deleted. ADDENDA

Article 1

This Act shall enter into force as of January 1, 1959. Article 2

The Criminal Compensation Act which has been effective in accordance with the Chosun Criminal Order shall be hereby repealed.

Article 3

With regard to those cases on compensation, whose causes took place before the enforcement of this Act, the previous Act shall apply.

ADDENDA

(1) This Act shall enter into force as of the date of its promulgation. (2) Persons who are given judgments of not guilty at courts-martial from May 16, 1961 to the date of the enforcement of this Act may claim compensation in accordance with this Act, provided that the claim of the compensation shall be made within six months from the date of the enforcement of this Act.

(3) The provisions of the Criminal Compensation Act shall apply mutatis mutandis to the persons who are given judgments of not guilty at the Revolutionary Court established in accordance with the Act on Organization of Revolutionary Court and Revolutionary Agency. (4) The claim of the compensation under the preceding Paragraph shall be made to the Supreme Court within six months from the date of the promulgation of this Act, and those claims made before the date of the promulgation of this Act shall be regarded to have been made in accordance with this Act.

ADDENDA

(1) (Enforcement Date) This Act shall enter into force as of the date of its promulgation. (2) (Transitional Measures) With regard to the case by which a claim for compensation has been caused before the enforcement of this Act, the previous Act shall apply. ADDENDA

(1) (Enforcement Date) This Act shall enter into force at the expiration of ten days from the date of its promulgation.

(2) (Transitional Measures) With regard to the case by which a claim for compensation has been caused before the enforcement of this Act, the preceding examples shall apply. ADDENDA

(1) (Enforcement Date) This Act shall enter into force as of the date of its promulgation. 12

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(2) (Transitional Measures) With regard to the case in which cause of claim for compensation has occurred before the enforcement of this Act, the previous provisions shall apply. ADDENDA

(1) (Enforcement Date) This Act shall enter into force as of February 25, 1988. (2) (Transitional Measures) The compensations to have been claimed before the enforcement of this Act shall be made according to the previous provisions. ADDENDA

(1) (Enforcement Date) This Act shall enter into force as of the date of its promulgation. (2) (Transitional Measures) Any claim for compensation on which a decision of the Council as prescribed in Article 27 (4) is made, before this Act enters into force, shall be subject to the previous provisions.

ADDENDA

Article 1 (Enforcement Date)

This Act shall enter into force on January 1, 2008. (Proviso Omitted.) Article 2 through Article 9 Omitted.


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