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NHRCK Recommends Prosecution Comply with Legal Procedures in Issuing Warrant of Penalty Execution
Date : 2007.02.28 00:00:00
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In May 2006, a complainant known as Hwang (male, 34) filed a complaint to the effect that the police arrested him at home and detained him because the prosecution ordered compulsory execution by issuing a warrant of penalty execution and placing him on the wanted list before dunning him to pay a fine of KRW2 million following a relevant payment order, which constituted a violation of human rights as it was in breach of the fine collection procedures. In response to the complaint, the National Human Rights Commission of Korea (NHRCK) recommended the public prosecutor general (head of the “D” District Public Prosecutor’s Office) admonish the prosecutor at the District Public Prosecutor’s Office who issued the warrant of penalty execution as well as the officer in charge of such execution.
The “D” District Public Prosecutor’s Office argued that issuance of a warrant for penalty execution and placement of the complainant on the wanted list, which served as the rationale for his arrest, had already been notified to him at the time of issuance of the fine payment order against him. It also contended that such actions were lawful and legitimate pursuant to applicable regulations.
According to findings by the NHRCK, fines must be collected according to the prosecution’s rules on collection when the results of a trial regarding fines to be collected are finalized. The relevant procedures are as follows:
① adjustment of impositions;
② issuance of payment order;
③ dunning;
④ compulsory execution; and
⑤ detention in a workhouse. In cases where a person fails to pay a fine even when the prosecution’s payment notice is served on him after the end of a thirty-day period as provided in Article 69 of the Criminal Act, the fine is still payable after a dunning letter is served on him and he fails to make payment despite being found to own property based on a property investigation, the fine must be collected according to a specific sequence by such means as collection orders to execution officers or court filings for compulsory real estate auction. Nonetheless, the respondent issued a warrant for penalty execution and placed the complainant on the wanted list before dunning him to make payment, which is a gross breach of the lawful procedures for fine collection.
Even in cases where a person fails to pay a fine by a set deadline, applicable law stipulates that such measures as compulsory execution or detainment at a workhouse cannot immediately be taken and a prosecutor should request the person to make payment. This is intended to minimize the costs incurred by compulsory execution by encouraging voluntary payment if possible and to use detainment at a workhouse as the last resort after all other means are exhausted.
The NHRCK judged that it was desirable for criminal policies to subject as few persons as possible to detainment in workhouses and prisons through said sequential execution procedures, which provide a sufficient filtering process. In addition, the Commission determined that detention in a labor house of those who failed to pay fines should be the last resort in the state’s imposition of penalties. Therefore, according to the NHRCK, it is desirable to pursue compulsory execution when absolutely necessary, at least only after a set fine payment deadline has passed.
Based on its belief that the respondent’s issuance of a warrant for penalty execution in violation of fine collection procedures was a breach of the principle of lawful procedures under Article 12 of the Constitution and infringed upon the complainant’s human rights, the NHRCK recommended an admonition of the respondent in a bid to prevent recurrence of similar incidents.
