Processing as a Family Protection Case
The court of jurisdiction of the family protection case
- The court of jurisdiction of the family protection case is at the family court in regards to the place of action, place of residence, or the present location of the domestic violence assailant (hereinafter referred to as the assailant). If it is a region where a family court is not installed, the court of jurisdiction is the district court of the region (includes branch courts) (Article 10 (1) of the “Act on Special Cases Concerning the Punishment, Etc. of Crimes of Domestic Violence”).
Processing of the assailant
- If the family protection case is being forwarded to the court of jurisdiction, the top level official of the detention facility of the assailant must hand over the assailant upon receiving the transfer order from the court of jurisdiction within 24 hours, for certain cities (special cities, metropolitan cities or other administrative cities specified by Article 10 (2) of the “Act on Exemption Law Regarding Installation in Jeju Special Autonomous Province and Free International City”), and in the case for other cities and counties, 48 hours. In this case, the court must decide whether to impose temporary measures on the assailant (Article 13 (1) of the “Act on Special Cases Concerning the Punishment, Etc. of Crimes of Domestic Violence”).
Investigation and Trial of Family Protection Cases
The general direction of investigation and trial
- The court, when investigating and trying a family protection case, must use expert knowledge including medicine, psychology, sociology and social welfare studies to illuminate the tendencies, past history and the family situation of the assailant and the domestic violence victim (hereinafter referred to as the ‘victim’) as well as other family members so as to ensure the human rights protection of the victim and other members of that family (Article 19 of the “Act on Special Cases Concerning the Punishment, Etc. of Crimes of Domestic Violence”).
Listening to the opinions of experts
- The court may consult the opinions of psychiatrists, psychologists, sociologists, social welfare workers and other experts to obtain a diagnostic opinion on the mental and psychological state of the assailant, victim and other family members, and opinions on the cause of the domestic violence case, and must consider these expert opinions when investigating and trying the relevant case (Article 22 of the “Act on Special Cases Concerning the Punishment, Etc. of Crimes of Domestic Violence”).
Non-disclosure of the trial
- The judge may choose not to disclose the trial for the interest of protecting privacy or maintaining the peace and stability of the family, or if good customs are threatened (Article 32 (1) of the “Act on Special Cases Concerning the Punishment, Etc. of Crimes of Domestic Violence”).
- If the victim or other family members are summoned as witnesses, they may request that the interrogation of the witnesses does not become disclosed for the sake of protecting privacy, or for the sake of the peace and stability of the family (Article 32 (2) of the “Act on Special Cases Concerning the Punishment, Etc. of Crimes of Domestic Violence”).
Ensuring the victim’s right to testify
- Except in the cases listed below, the court must question the victim as a witness if the victim requests it, and when questioning said victim, it must give the opportunity for the victim to express his or her opinion on the family protection case (Article 33 (1), (2) of the “Act on Special Cases Concerning the Punishment, Etc. of Crimes of Domestic Violence”).
· In the case that the requestor has acknowledged that a clear enough attempt at stating his or her opinion has been made in an earlier part of the trial and if further statements are unnecessary.
· In the case that the statement of opinion of the requestor leads to serious delays to the trial process
- The court can demand the statement of opinions of the victim or the home protection investigator if they are necessary in trying the case, and for the sake of a fair statement of opinion, can order the exit of the assailant from the courtroom (Article 33 (3) of the “Act on Special Cases Concerning the Punishment, Etc. of Crimes of Domestic Violence”).
- As stated above, the victim, on being asked to give a statement, can allow an agent such as a lawyer, legal representative, spouse, immediate family, brothers and sisters and counselors in counseling centers, or the head of the counseling center to state the opinion in his or her stead (Article 33 (4) of the “Act on Special Cases Concerning the Punishment, Etc. of Crimes of Domestic Violence”).
Interpretation and translation of marriage immigrants
- For a marriage immigrant involved in a family protection case who is not fluent in Korean, he or she may request interpretation and translation in court when making a statement (Article 34 (1) of the “Act on Special Cases Concerning the Punishment, Etc. of Crimes of Domestic Violence”, Article 180 and 182 of the “Criminal Procedure Act”).
Temporary Protection Measures for the Victim
The decision for temporary measures
- For the smooth progress of the family protection case, or for the protection of the victim, the court can order the expulsion of the assailant from his or her home or prohibit approach as temporary measures (Article 29 (1) of the “Act on Special Cases Concerning the Punishment, Etc. of Crimes of Domestic Violence”).
The Disposal of Family Protection Cases
Decisions without any disposal
- As a result of trying the family protection case, the court must decide to withhold disposal if any of the below circumstances occur (Article 37 (1) of the “Act on Special Cases Concerning the Punishment, Etc. of Crimes of Domestic Violence”).
1. If protection disposal cannot be made, or if it is not necessary
2. If it is considered that the case should not be disposed as a family protection case in light of the characteristics, motives and results of the case, the character of the assailant or his or her habits
- If the case is not disposed as a family protection case as in the above 2 situations, it is disposed as follows (Article 37 (2) of the “Act on Special Cases Concerning the Punishment, Etc. of Crimes of Domestic Violence”).
· If a prosecutor has forwarded the case, it shall be forwarded to the prosecutor in charge of the court of jurisdiction
· If the court has forwarded the case, then it is transferred to the relevant court
- If the non-disposal is decided as in 1 above, the temporary measures in place shall be canceled, and in the case of 2, the temporary measures shall be lifted with the court’s judgment (Article 44 of the “Home Protection Judgment Rules”).
The decision to make protections
- If the court as a result of the trial decides that the protections are necessary, it can take protective measures (Article 40 (1) of the “Act on Special Cases Concerning the Punishment, Etc. of Crimes of Domestic Violence”.)