Mutual Assistance in Criminal Matters (Prescribed Foreign Country) (Republic of Korea) Regulations 2000

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Reprint
as at 3 March 2000

Mutual Assistance in Criminal Matters (Prescribed

Foreign Country) (Republic of Korea) Regulations 2000

(SR 2000/15)
Michael Hardie Boys, Governor-General

Order in Council



At Wellington this 28th day of February 2000

Present:His Excellency the Governor-General in

Council

Note

Changes authorised

by section 17C of the Acts and Regulations Publication Act 1989 have

been made in this reprint.
A general outline

of these changes is set out in the notes at the end of this reprint,

together with other explanatory material about this reprint.

These regulations are administered by the Ministry of Justice.



Pursuant to section 65 of the Mutual Assistance in

Criminal Matters Act 1992, His Excellency the Governor-General,

acting on the advice and with the consent of the Executive Council,

makes the following regulations.

Contents

1 Title
2 Commencement
3 Interpretation
4 Part 3 of Act to apply to Republic of Korea
Schedule
Treaty between New Zealand and the Republic of Korea on Mutual

Legal Assistance in Criminal Matters



Regulations

1 Title

These regulations

are the Mutual Assistance in Criminal Matters (Prescribed Foreign

Country) (Republic of Korea) Regulations 2000.

2 Commencement

These regulations

come into force on 30 March 2000.

3 Interpretation

In these regulations,

unless the context otherwise requires,—

Act means the Mutual Assistance in Criminal Matters Act 1992

Treaty means the

Treaty between New Zealand and the Republic of Korea on Mutual Legal

Assistance in Criminal Matters, done at Wellington on 15 September

1999, a copy of the English text of which is set out in the Schedule.

4 Part 3 of Act to apply to Republic of Korea

Part 3 of the Act applies

to the Republic of Korea subject to any limitations, conditions, exceptions,

or qualifications that are necessary to give effect to the Treaty.

Schedule
Treaty between New Zealand and the Republic of Korea on Mutual

Legal Assistance in Criminal Matters

r 3

NEW ZEALAND AND THE REPUBLIC OF KOREA (hereinafter

referred to as “the Parties”),

DESIRING to improve the effectiveness

of both countries in the prevention, investigation and prosecution

of crime through cooperation and mutual assistance in criminal matters,

HAVE AGREED as follows:

Article 1
Scope of application

1



The Parties shall, in accordance with this

Treaty, grant each other assistance in investigations, prosecutions

or proceedings in respect of criminal matters.

2 Criminal matters also include matters connected with offences

against a law related to taxation, customs duties, foreign exchange

control or other revenue matters, but not in connection with non-criminal

proceedings relating thereto.

3 Assistance shall include:

(a) taking evidence or statements from persons;

(b) providing information, documents, records and articles

of evidence;

(c) locating or identifying persons or items;

(d) serving documents;

(e) executing requests for search and seizure;

(f) making arrangements for persons to give evidence or assist

in criminal investigations in the Requesting Country;

(g) tracing, restraining, forfeiting and confiscating the

proceeds and instrumentalities of criminal activities; and

(h) other assistance consistent with the object of this Treaty

which is not inconsistent with the law of the Requested Country.

4 Assistance granted under this Treaty does not include:

(a) the extradition, or the arrest or detention for that purpose,

of any person;

(b) the execution in the Requested Country of criminal judgments

imposed in the Requesting Country except to the extent permitted by

the law of the Requested Country and this Treaty;

(c) the transfer of persons in custody to serve sentences;

(d) the transfer of proceedings in criminal matters.

5 This Treaty shall not apply to Tokelau unless the Parties

have exchanged notes agreeing the terms on which this Treaty applies.

Article 2
Other assistance



This Treaty shall not affect any existing obligations

between the Parties, whether pursuant to other treaties, arrangements,

or otherwise, nor prevent the Parties from providing assistance to

each other pursuant to other treaties, arrangements, or otherwise.

Article 3
Central Authority

1



The Parties at all times shall each have a

person who, or an authority which, is designated as the Central Authority

to transmit and receive requests for the purposes of this Treaty.

2 The following persons or authorities are hereby designated

to be the Central Authorities at the commencement of this Treaty:

(a) for the Republic of Korea the Central Authority is the

Minister of Justice;

(b) for New Zealand the Central Authority is the Attorney-General.

3 Each Party shall notify the other of any change of its

Central Authority.

4 The Central Authorities shall normally communicate directly

with one another but may, if they choose, communicate through the

diplomatic channel.

Article 4
Contents of requests

1



Requests for assistance shall:

(a) specify the purpose of the request and the nature of the

assistance sought;

(b) identify the person, agency or authority that initiated

the request;

(c) include a description of the nature of the criminal matter,

including a summary of the relevant facts and laws and applicable

penalties;

(d) include a statement indicating the current status of the

investigation or proceeding;

(e) include a statement specifying any time frame within which

compliance with the request is desired.

2 Requests for assistance, where relevant and so far as

possible, shall also include:

(a) the identity, nationality and location of the person or

persons who are the subject of, or who may have information relevant

to, the criminal matter;

(b) where the request is for assistance under Article 10 or

11,

(i) a description of the matters about which persons are to

be examined including, where appropriate, any questions that the Requesting

Country wishes to be put to those persons;

(ii) a description of any documents, records or articles of

evidence to be produced and, where relevant, a description of the

appropriate person to be asked to produce them;

(c) where the request is for assistance under Article 12 or

13, information

about the allowances and expenses to which a person travelling to

the Requesting Country would be entitled;

(d) where the request is for assistance under Article 16 or

17, a description

of the material sought and, where relevant, its likely location;

(e) where the request is for assistance under Article 17,

(i) a statement outlining the basis of the Requesting Country's

belief that proceeds of crime may be located in its jurisdiction,

and

(ii) the court order, if any, sought to be enforced and a statement

about the status of that order;

(f) where the request is for assistance that may lead to or

result in the discovery or recovery of proceeds of crime, a statement

as to whether a special arrangement under Article 17(4) is sought;

(g) a statement outlining any particular requirement or procedure

that the Requesting Country may have, or wish to be followed in giving

effect to the request, including details of the manner or form in

which any information, evidence, document or item is to be supplied;

(h) a statement setting out the wishes, if any, of the Requesting

Country concerning the confidentiality of the request, and the reasons

for those wishes;

(i) where an official of the Requesting Country intends travelling

to the Requested Country in connection with the request, information

about the purpose of that person's visit, the proposed time frame

and travel arrangements;

(j) any other supporting information, evidence or documents

that is necessary to enable, or may assist, the Requested Country

to give effect to the request.

3 A request, any supporting documentation and any communications

made pursuant to this Treaty, shall be in the language of the Requesting

Country and be accompanied by a translation into the language of the

Requested Country.

4 If the Requested Country considers that the information

contained in a request is not sufficient to enable the request to

be dealt with in accordance with this Treaty, it may request additional

information.

5 A request shall be made in writing except that the Requested

Country may accept a request in another form in urgent situations.

In any such situation, the request shall be confirmed in writing within

20 days unless the Requested Country agrees otherwise.

Article 5
Refusal of assistance

1



Assistance shall be refused if, in the opinion

of the Requested Country,

(a) the request relates to an offence that is regarded by

the Requested Country as an offence of a political character or an

offence only under military law;

(b) the request relates to the prosecution of a person for

an offence in respect of which the person has been convicted, acquitted

or pardoned in the Requested Country;

(c) there are substantial grounds for believing that the request

for assistance will result in a person being prejudiced on account

of that person's race, sex, religion, nationality or political opinions;

or

(d) the request, if granted, would seriously impair the Requested

Country's sovereignty, security or essential interests, considerations

of which may include the safety of any person and the burden on the

resources of the Requested Country.

2 Assistance may be refused if, in the opinion of the Requested

Country,

(a) the request relates to the prosecution of a person for

an offence for which the person could no longer be prosecuted by reason

of lapse of time if the offence had been committed within the jurisdiction

of the Requested Country;

(b) the request relates to the prosecution or punishment of

a person for conduct that would not, if it had taken place within

the jurisdiction of the Requested Country, have constituted an offence;

or

(c) the request relates to an offence which carries the death

penalty in the Requesting Country but in respect of which the death

penalty is either not provided for in the Requested Country or not

normally carried out unless the Requesting Party gives such assurances

as the Requested Country considers sufficient that the death penalty

will not be imposed or, if imposed, will not be carried out.

3 Assistance may be postponed by the Requested Country if

the request would interfere with an ongoing investigation or prosecution

in the Requested Country.

4 Before denying or postponing assistance pursuant to this

Article, the Requested Country, through its Central Authority, shall:

(a) promptly inform the Requesting Country of the reason for

considering denial or postponement; and

(b) consult with the Requesting Country to determine whether

assistance may be given subject to such terms and conditions as the

Requested Country deems necessary.

5 If the Requesting Country accepts assistance subject to

the terms and conditions referred to in paragraph 4(b), it shall comply

with those terms and conditions.

Article 6
Execution of requests

1



Requests for assistance shall be carried out

promptly by the competent authorities of the Requested Country in

accordance with the laws of that country and, to the extent those

laws permit, in the manner requested by the Requesting Country.

2 The Requested Country may postpone the delivery of material

requested if such material is required for proceedings in respect

of criminal or civil matters in that Country. If this is the case,

the Requested Country shall, upon request, provide certified copies

of documents.

3 The Requested Country shall promptly inform the Requesting

Country of circumstances, when they become known to the Requested

Country, which are likely to cause a significant delay in carrying

out the request.

Article 7
Return of material to Requested Country



Where required by the Requested Country, the Requesting

Country shall return material provided under this Treaty when it is

no longer needed for the criminal matter to which the request relates.

Article 8
Confidentiality and limitation of use

1



The Requested Country shall, if so requested,

use its best efforts to keep confidential a request for assistance,

the contents of the request and its supporting documentation, and

any action taken pursuant to the request. If the request cannot be

executed without breaching confidentiality, the Requested Country

shall so inform the Requesting Country before executing the request,

and the Requesting Country shall advise whether it nevertheless wishes

the request to be executed.

2 The Requesting Country shall, if so requested, use its

best efforts to keep confidential information and evidence provided

by the Requested Country except to the extent that the evidence and

information is needed for the criminal matter to which the request

relates and where otherwise authorised by the Requested Country.

3 The Requesting Country shall, if so requested, use its

best efforts to ensure that the information or evidence is protected

against loss and unauthorised access, use, modification, disclosure

or other misuse.

4 The Requesting Country shall not use information or evidence

obtained, nor anything derived from either, for purposes other than

those stated in a request without the prior consent of the Requested

Country.

Article 9
Service of documents

1



The Requested Country shall, to the extent

its laws permit, carry out requests for the service of documents in

respect of a criminal matter.

2 A request for service of a summons requiring the appearance

of a person as a witness in the Requesting Country shall be made to

the Requested Country within 45 days before the scheduled appearance.

In urgent cases the Requested Country may waive this requirement.

3 The Requested Country shall forward to the Requesting

Country proof of service of the documents. If service cannot be effected,

the Requesting Country shall be so informed and advised of the reasons.

4 A person who fails to comply with any process served on

him or her shall not thereby be liable to any penalty or coercive

measure pursuant to the law of the Requesting Country or Requested

Country.

Article 10
Taking of evidence

1



The Requested Country shall, to the extent

its laws permit, carry out requests for the taking of evidence in

respect of a criminal matter, for transmission to the Requesting Country.

2 To the extent permitted by its law, the Requested Country

shall permit such persons as are specified in the request to be present

during the execution of the request and shall allow such persons to

question the person giving evidence or to submit the questions to

be posed to that person.

3 A person from whom evidence is to be taken in the Requested

Country pursuant to a request under this Article may decline to give

evidence where:

(a) the law of the Requested Country would permit or require

that person to decline to give evidence in similar circumstances in

criminal proceedings originating in the Requested Country; or

(b) the law of the Requesting Country would permit or require

that person to decline to give evidence in such criminal proceedings

in the Requesting Country.

4 If any person in the Requested Country claims that there

is a right or obligation to decline to give evidence under the law

of the Requesting Country, the Central Authority of the Requesting

Country shall, upon request, provide a certificate to the Central

Authority of the Requested Country as to the existence or otherwise

of that right. In the absence of evidence to the contrary, the certificate

shall be sufficient evidence of the matters stated in it.

5 For the purposes of this Article, the taking of evidence

includes the production of documents or other articles.

Article 11
Obtaining of statements of persons



The Requested Country shall, upon request, endeavour to

obtain statements of persons in respect of a criminal matter in the

Requesting Country.

Article 12
Transfer of persons in custody to give evidence

1



A person in custody in the Requested Country

may, at the request of the Requesting Country, be temporarily transferred

to that Country to give evidence in criminal proceedings in that Country.

For the purposes of this Article, a person in custody also includes

a person not detained in prison but who is subject to a sentence imposed

for an offence, not being a sentence of a monetary nature.

2 The Requested Country shall transfer a person in custody

to the Requesting Country only if:

(a) the person freely consents to the transfer; and

(b) the Requesting Country agrees to comply with any conditions

specified by the Requested Country relating to the custody or security

of the person to be transferred.

3 Where the Requested Country advises the Requesting Country

that the transferred person is no longer required to be held in custody,

that person shall be released.

4 A person who is transferred pursuant to a request under

this Article shall be returned to the Requested Country in accordance

with arrangements agreed by the Requested Country as soon as practicable

after the evidence has been given or at such earlier time as the person's

presence is no longer required.

5 A person transferred shall receive credit for service

of the sentence imposed in the Requested Country for the time served

in the custody of the Requesting Country.

Article 13
Availability of other persons to give evidence or assist

investigations

1



The Requesting Country may request the assistance

of the Requested Country in arranging for the transfer of a person

(not being a person to whom Article 12 of this Treaty applies) to

the Requesting Country to give or provide evidence or assistance in

respect of a criminal matter in the Requesting Country.

2 The Requested Country shall, if satisfied that satisfactory

arrangements for that person's safety will be made by the Requesting

Country, invite the person to consent to give or provide evidence

or assistance in the Requesting Country. The person shall be informed

of any expenses or allowances payable. The Requested Country shall

promptly inform the Requesting Country of the person's response and,

if the person consents, take all steps necessary to facilitate the

request.

Article 14
Safe conduct

1



Subject to paragraph 2 of this Article, where

a person is in the Requesting Country pursuant to a request made under

Articles 12 or 13 of this

Treaty, during the period that the person is required to remain in

the Requesting Country for the purposes of the request:

(a) the person shall not be detained, prosecuted or punished

in the Requesting Country for any offence, nor be subject to any civil

proceedings, being civil proceedings to which the person could not

be subjected if the person were not in the Requesting Country, in

respect of any act or omission which preceded the person's departure

from the Requested Country; and

(b) the person shall not, without the person's consent, be

required to give evidence in any criminal proceeding or to assist

any criminal investigation other than the criminal matter to which

the request relates.

2 Paragraph 1 of this Article ceases to apply if that person,

being free to leave, has not left the Requesting Country within a

period of 15 days after that person has been officially notified

that his or her presence is no longer required or, having left, has

returned.

3 A person who does not consent to give evidence pursuant

to Articles 12 or 13 of this

Treaty shall not by reason thereof be liable to any penalty or coercive

measure by the courts of the Requesting country or Requested Country.

4 A person who consents to give evidence pursuant to Articles

12 or 13 of this

Treaty shall not be subject to prosecution based on his or her testimony,

except for perjury or contempt of Court.

Article 15
Provision of information

1



The Requested Country shall provide copies

of documents and records that are open to public access as part of

a public register or otherwise, or that are available for purchase

or inspection by the public.

2 The Requested Country may provide copies of any documents

or records in the same manner and under the same conditions as they

may be provided to its own law enforcement and judicial authorities.

Article 16
Search and seizure

1



The Requested Country shall, to the extent

its laws permit, carry out requests made in respect of a criminal

matter in the Requesting Country for the search, seizure and delivery

of material to that country.

2 The Requested Country shall provide such information as

may be required by the Requesting Country concerning the result of

any search, the place and circumstances of seizure, and the subsequent

custody of the material seized.

3 The Requesting Country shall observe any conditions imposed

by the Requested Country in relation to any seized material which

is delivered to the Requesting Country.

Article 17
Proceeds of crime

1



The Requested Country shall, upon request,

endeavour to ascertain whether any proceeds of a crime are located

within its jurisdiction and shall notify the Requesting Country of

the results of its inquiries.

2 Where, pursuant to paragraph 1, suspected proceeds of

crime are found, the Requested Country shall take such measures as

are permitted by its law to restrain or confiscate such proceeds.

3 In the application of this Article, the rights of bona

fide third parties shall be respected under the law of the Requested

Country.

4 The Requested Country shall retain any proceeds of crime

that are confiscated unless otherwise agreed in a particular case.

5 For the purposes of this Treaty “proceeds of crime”

means any property suspected, or found by a court to be property directly

or indirectly derived or realised as a result of the commission of

an offence or to represent the value of property and other benefits

derived from the commission of an offence; and includes property that

is used to commit or to facilitate the commission of an offence.

Article 18
Certification and authentication

1



Subject to paragraph 2, a request for assistance,

and the documents in support thereof, and documents or materials furnished

in response to a request, shall not require any form of certification

or authentication unless the Requested Country so requests in a particular

case.

2 Where, in a particular case, the Requested or Requesting

Country requests that documents or materials be authenticated, the

documents or materials shall be duly authenticated in the manner provided

in paragraph 3.

3 Documents or materials are authenticated for the purposes

of this Treaty if:

(a) they purport to be signed or certified by a judge, magistrate

or other official in or of the Country sending the document; and

(b) they purport to be sealed with an official seal of the

Country sending the document or of a Minister, a Department or an

official of the Government, of that Country.

Article 19
Subsidiary arrangements



The Central Authority of each Party may enter into subsidiary

arrangements consistent with the purposes of this Treaty and with

the laws of both Parties.

Article 20
Representation and expenses

1



Unless otherwise provided in this Treaty the

Requested Country shall make all necessary arrangements for the representation

of the Requesting Country in any criminal proceedings arising out

of a request for assistance and shall otherwise represent the interests

of the Requesting Country.

2 The Requested Country shall meet the cost of fulfilling

the request for assistance except that the Requesting Country shall

bear:

(a) the expenses associated with conveying any person to or

from the territory of the Requested Country, and the accommodation

expenses of the person and any fees, allowances or other expenses

payable to that person whilst in the Requesting Country pursuant to

a request under Articles 9, 12 or 13 of this

Treaty;

(b) the expenses associated with conveying custodial or escorting

officers;

(c) fees and expenses of experts and associated with the translation

of documents;

(d) where required by the Requested Country, exceptional expenses

incurred in fulfilling the request.

Article 21
Consultation and settlement of disputes



The Parties shall consult promptly, at the request of

either, concerning any issue relating to the interpretation, application

or implementation of this Treaty, either generally or in relation

to a particular case.

Article 22
Entry into force and termination

1



This Treaty enters into force 30 days

after the date on which the Parties have notified each other in writing

that their respective requirements for the entry into force of this

Treaty have been complied with.

2 This Treaty applies to requests whether or not the relevant

acts or omissions occurred prior to this Treaty entering into force.

3 Either Party may terminate this Treaty by notice in writing

at any time and it shall cease to be in force six months after the

date of receipt of that notice. Where notice to terminate this Treaty

has been given in accordance with this Article, any request for assistance

received before termination shall be dealt with as if the Treaty were

still in force unless the Requesting Country withdraws the request.



IN WITNESS WHEREOF, the undersigned, being

duly authorised by their respective Governments, have signed this

Treaty.

DONE at Wellington on the fifteenth day of

September 1999 in English and Korean, both texts being equally authentic.

For New ZealandDon McKinnonMinister of Foreign Affairs and Trade

 

For the Republic of KoreaHong Soon-youngMinister of Foreign Affairs and Trade



Marie Shroff,Clerk of the Executive

Council.

Explanatory Note



This note is

not part of the regulations, but is intended to indicate their general

effect.
These

regulations come into force on 30 March 2000. They provide that Part 3 of the Mutual Assistance

in Criminal Matters Act 1992 applies to the Republic of Korea (South

Korea). The Republic of Korea may make requests to New Zealand for

assistance in criminal matters, but requests are subject to any limitations,

conditions, exceptions, or qualifications that are contained in the

Treaty between New Zealand and the Republic of Korea. The Treaty is

set out in the Schedule.



Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notification in Gazette: 2 March 2000.

Contents



1General



2Status

of reprints



3How

reprints are prepared



4Changes

made under section 17C of the Acts and Regulations Publication Act

1989



5List

of amendments incorporated in this reprint (most recent first)

Notes

1 General



This is a reprint of the Mutual Assistance in Criminal

Matters (Prescribed Foreign Country) (Republic of Korea) Regulations

2000. The reprint incorporates all the amendments to the regulations

as at 3 March 2000, as specified in the list of amendments at

the end of these notes.

Relevant provisions of any amending enactments that have

yet to come into force or that contain relevant transitional or savings

provisions are also included, after the principal enactment, in chronological

order.

2 Status of reprints



Under section 16D of the Acts and Regulations Publication

Act 1989, reprints are presumed to correctly state, as at the date

of the reprint, the law enacted by the principal enactment and by

the amendments to that enactment. This presumption applies even though

editorial changes authorised by section 17C of the Acts and Regulations

Publication Act 1989 have been made in the reprint.

This presumption may be rebutted by producing the official

volumes of statutes or statutory regulations in which the principal

enactment and its amendments are contained.

3 How reprints are prepared



A number of editorial conventions are followed in the

preparation of reprints. For example, the enacting words are not included

in Acts, and provisions that are repealed or revoked are omitted.

For a detailed list of the editorial conventions, see http://www.pco.parliament.govt.nz/editorial-conventions/

or Part 8 of the Tables of New Zealand Acts

and Ordinances and Statutory Regulations and Deemed Regulations in

Force.

4 Changes made under section 17C of the Acts and Regulations

Publication Act 1989



Section

17C of the Acts and Regulations Publication Act

1989 authorises the making of editorial changes in a reprint as set

out in sections

17D and 17E of that Act so that, to the

extent permitted, the format and style of the reprinted enactment

is consistent with current legislative drafting practice. Changes

that would alter the effect of the legislation are not permitted.

A new format of legislation was introduced on 1 January

2000. Changes to legislative drafting style have also been made since

1997, and are ongoing. To the extent permitted by section 17C of the Acts and Regulations Publication Act 1989, all legislation

reprinted after 1 January 2000 is in the new format for legislation

and reflects current drafting practice at the time of the reprint.

In outline, the editorial changes made in reprints under

the authority of section 17C of the Acts and Regulations Publication

Act 1989 are set out below, and they have been applied, where relevant,

in the preparation of this reprint:



•omission of unnecessary referential words (such as “of this section” and “of this Act”)



•typeface and type size (Times Roman, generally in 11.5 point)



•layout of provisions, including:



•indentation



•position of section headings (eg, the number and heading now appear

above the section)



•format of definitions (eg, the defined term now appears in bold type,

without quotation marks)



•format of dates (eg, a date formerly expressed as “the 1st day of January 1999” is now expressed as “1 January 1999”)



•position of the date of assent (it now appears on the front page

of each Act)



•punctuation (eg, colons are not used after definitions)



•Parts numbered with roman numerals are replaced with arabic numerals,

and all cross-references are changed accordingly



•case and appearance of letters and words, including:



•format of headings (eg, headings where each word formerly appeared

with an initial capital letter followed by small capital letters are

amended so that the heading appears in bold, with only the first word

(and any proper nouns) appearing with an initial capital letter)



•small capital letters in section and subsection references are now

capital letters



•schedules are renumbered (eg, Schedule 1 replaces First Schedule),

and all cross-references are changed accordingly



•running heads (the information that appears at the top of each page)



•format of two-column schedules of consequential amendments, and schedules

of repeals (eg, they are rearranged into alphabetical order, rather

than chronological).

5 List of amendments incorporated in this reprint (most

recent first)

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