Criminal Records vs. Investigation Records in South Korea: A Comprehensive Overview
I. The Big Picture
1. Basic Concepts
A. What is an investigation data table?
An investigation data table is a table on which an investigative agency, having taken the suspect’s fingerprints, records the suspect’s personal particulars, the name of the offense, and the like. Both a criminal record inquiry and an investigation record inquiry are conducted on the basis of this investigation data table.
B. Criminal record data vs. investigation record data
The two types of data are distinguished by which disposition outcome on the investigation data table they correspond to.
| Category | Content |
|---|---|
| Criminal record data | Data on the investigation data table relating to: (1) the imposition, remission, or suspension of a sentence of a fine or heavier; (2) protective custody, custody for medical treatment, or probation; (3) the voiding of a suspended sentence; (4) the cancellation of a suspended execution; and (5) the imposition or disposition of confiscation, collection, a community-service order, an attendance-center order, and the like imposed together with a sentence of a fine or heavier |
| Investigation record data | The remaining data on the investigation data table, excluding criminal record data—such as data on the imposition of a sentence below a fine, a non-referral decision by a judicial police officer, and a non-prosecution disposition by a prosecutor |
| Record of prior convictions | A collective term for the register of convicts, the convict record card, and criminal record data |
C. Criminal record inquiry vs. investigation record inquiry
| Category | Content |
|---|---|
| Criminal record inquiry | Inspecting and cross-checking the register of convicts or computerized criminal record data |
| Investigation record inquiry | Inspecting and cross-checking computerized investigation record data |
D. Retention periods for criminal records
| Disposition | Investigation record data | Criminal record data | Convict record card | Register of convicts |
|---|---|---|---|---|
| Notification disposition | X | — | — | — |
| No suspicion (cleared) | — | — | — | — |
| Detention / minor fine | 6 months (juvenile: X) | X | X | — |
| Juvenile protective disposition | 3–10 years | — | — | — |
| Suspension of indictment | Permanent | X | — | — |
| Suspension of sentence | Permanent | X | — | — |
| Fine | — | 2 years | — | — |
| Suspension/loss of qualification | — | Duration of the disposition | — | — |
| Suspended execution | — | 5 years (3 years or less) / 10 years (over 3 years) | — | — |
| Actual sentence / remission of execution | — | Permanent | — | — |
2. Legal Basis and Restrictions on Inquiry and Reporting
A. Governing statute
The Act on the Lapse of Criminal Sentences, etc. (hereinafter the “Sentence Lapse Act”) is the core governing statute. Its purpose is to guarantee the normal return to society of persons with prior convictions, by setting standards for the management of records of prior convictions and investigation record data and for the lapse of sentences (Sentence Lapse Act, Article 1).
B. Cases in which inquiry and reporting are permitted (enumerated restriction)
Article 6(1) of the Sentence Lapse Act permits a criminal record inquiry or investigation record inquiry by means of the investigation data table, and the reporting thereon, only within the minimum scope necessary for the purpose of the inquiry, and enumerates the permitted grounds as follows.
| Subpara. | Permitted ground |
|---|---|
| 1 | Where necessary for criminal investigation or trial |
| 2 | Where necessary for the execution of a sentence, or of a community-service or attendance-center order |
| 3 | Where necessary for protective dispositions such as protective custody, custody for medical treatment, or probation, or for the performance of security-surveillance duties |
| 4 | Where the person applies in order to confirm the content of the investigation data table, or applies because it is needed for foreign entry or stay permission |
| 5 | Where a background investigation is conducted under the National Intelligence Service Act |
| 6 | Where necessary for the naturalization, restoration of nationality, or stay permission of a foreigner |
| 7 | Where necessary for admission as a cadet at a military academy, and for the appointment of, and selection of candidates for, officers, warrant officers, non-commissioned officers, and military civilian employees |
| 8 | Where necessary, in connection with the imposition of military-service obligations, for the enlistment of active-duty soldiers and social-service personnel |
| 9 | Where necessary to confirm grounds of disqualification, grounds for discipline, or grounds for restricting public-pension payment, in relation to the appointment, authorization, permission, conferral of honors, commendation, etc. of public officials prescribed by other statutes |
| 10 | Where otherwise provided by another statute that a criminal record inquiry or investigation record inquiry, and the reporting thereon, be conducted |
C. Prohibitions
- Prohibition on disclosure: A person who manages an investigation data table, or who conducts a criminal record inquiry or investigation record inquiry in the course of duty, must not disclose its content (Sentence Lapse Act, Article 6(2)).
- Prohibition on acquisition for other purposes: No one may acquire criminal record data or investigation record data for the purpose of using it for a purpose other than those set out in paragraph 1 (Sentence Lapse Act, Article 6(3)).
- Prohibition on use for other purposes: A person who has been reported, or has acquired, criminal record data or investigation record data under paragraph 1 must not use it for a purpose other than those prescribed by statute (Sentence Lapse Act, Article 6(4)).
3. The Relationship with Foreigners
A. Application by the foreigner in person
Article 6(1), subparagraph 4 of the Sentence Lapse Act expressly sets out, as a permitted ground for inquiry and reporting, “where the person applies in order to confirm the content of the investigation data table, or applies because it is needed for foreign entry or stay permission” (Sentence Lapse Act, Article 6(1), subparagraph 4). A foreigner, too, can therefore confirm his or her own criminal record and investigation record data by applying in person.
B. For the purpose of a foreigner’s naturalization, restoration of nationality, or stay permission
Article 6(1), subparagraph 6 of the Sentence Lapse Act provides separately, as a permitted ground, “where necessary for the naturalization, restoration of nationality, or stay permission of a foreigner,” so an inquiry is also possible for immigration-related administrative purposes (Sentence Lapse Act, Article 6(1), subparagraph 6).
C. A private organization cannot require a foreigner’s criminal record inquiry
The court has held that the mere fact that a private organization, by its self-governing rules, recognizes officer eligibility only for persons without a certain criminal record does not give it authority to require an officer candidate or an elected officer to submit a criminal and investigation record inquiry report including lapsed sentences (Uijeongbu District Court, Goyang Branch, Feb. 14, 2025, 2024gahap53553). This is a principle that applies equally to all individuals, including foreigners.
4. Recent Precedents on Information Disclosure by the Person’s Own Application
A. The method of a convict’s information-disclosure request cannot be restricted (Busan District Court, Aug. 18, 2023, 2023guhap109)
In a case in which a plaintiff who was serving a sentence in prison requested his own criminal record and investigation record inquiry information from the defendant (a police station) by way of an information-disclosure request, but the defendant refused on the ground that it was “possible only by visiting the police station’s comprehensive inquiry room in person or through the internet criminal-record-report issuance system,” the court revoked the refusal disposition, holding as follows.
Article 6(1), subparagraph 4 of the Sentence Lapse Act expressly sets out the case where the person applies as a permitted ground for reporting, and no provision restricting the method of application and reporting for a criminal record inquiry, etc. by the person’s own application can be found in the Sentence Lapse Act or its Enforcement Decree; so, the plaintiff having applied in person, the defendant must disclose the information at issue. (Busan District Court, Aug. 18, 2023, 2023guhap109)
B. A judgment to the same effect (Busan District Court, Nov. 3, 2023, 2022guhap898)
In a similar case, the Busan District Court revoked the defendant’s refusal-to-disclose disposition to the same effect (Busan District Court, Nov. 3, 2023, 2022guhap898).
C. Refusal to disclose a third party’s criminal record (Daejeon District Court, July 13, 2023, 2022guhap104548)
By contrast, in a case in which the plaintiffs requested the disclosure of a criminal record inquiry report on a third party (C), the court held that the information did not fall within Article 6(1), subparagraph 1 of the Sentence Lapse Act (where necessary for criminal investigation or trial), and so was non-disclosable information under Article 9(1), subparagraph 1 of the Information Disclosure Act (Daejeon District Court, July 13, 2023, 2022guhap104548). This confirms that criminal record information cannot be disclosed indiscriminately by a third party other than the person concerned.
5. Precedent on Acquisition of Criminal Record Data for Other Purposes
The Supreme Court has held that the “acquisition of criminal record data, etc.” referred to in Article 6(3) of the Sentence Lapse Act is not limited to acquisition directly from a person who manages an investigation data table or who conducts a criminal record inquiry by means of the investigation data table in the course of duty (Supreme Court, Nov. 11, 2010, 2010do8265). In other words, the prohibition on acquisition for other purposes applies even where the acquisition is by an indirect method.
6. A Public Official’s Breach of the Duty to Report a Criminal Record, and State Compensation
In a case in which a public official, having inquired into a candidate’s criminal record data through the internal computer network and confirmed four lapsed prior convictions of imprisonment without labor or heavier, nonetheless failed to record them on the criminal record inquiry report for election candidates, the Supreme Court accepted the lower court’s judgment, which—recognizing the public official’s gross negligence—found, beyond the State’s compensation liability, the public official’s personal compensation liability as well (Supreme Court, Sept. 8, 2011, 2011da34521).
7. Use in Criminal Trials
A criminal record inquiry and an investigation record inquiry are used widely in criminal trials for the following purposes.
| Purpose of use | Content |
|---|---|
| Confirming prior convictions | Confirming the defendant’s prior convictions of the same kind, and whether the defendant is a repeat offender |
| Aggravation for recidivism | Judging whether to aggravate for recidivism under Article 35 of the Criminal Act |
| Sentencing material | Material forming the basis of sentencing, such as the record of prior offenses and the judgment of habituality |
| Foreign defendants | Prior convictions are confirmed in the same way through an inquiry into foreign-crime and investigation record data |
For a foreign defendant, too, prior convictions are confirmed through an “inquiry into foreign-crime and investigation record data,” and these are reflected in sentencing in the same way as for a national (Daejeon District Court, Cheonan Branch, May 11, 2018, 2017godan2409, 2018godan339 (consolidated); Daegu District Court, Seobu Branch, Oct. 12, 2023, 2023gohap19, 2023gohap50 (consolidated); and many others).
II. How the ‘Lapse of Sentence’ System Works
1. The Structure and Operation of the Lapse of Sentence System
A. Types of grounds for the lapse of a sentence
The grounds for the lapse of a sentence are broadly divided into four types.
| Type | Basis | Content |
|---|---|---|
| (1) Judicial lapse of a sentence | Criminal Act, Article 81 | Causing a sentence to lapse by a court’s judgment |
| (2) Statutory lapse of a sentence | Sentence Lapse Act, Article 7 | Automatic lapse upon the passage of a certain period |
| (3) General amnesty | Amnesty Act, Article 5 | Loss of the effect of the sentence by amnesty |
| (4) Passage of the suspended-execution period | Criminal Act, Article 65 | Loss of the effect of the sentence upon the passage of the suspension period |
The lapse of a sentence and the restoration of rights operate as follows: even where the penal execution power has already been extinguished, for instance by completion of the execution of the sentence, the fact of the prior conviction remains, and unless the effect of the sentence is completely extinguished the person remains subject to restrictions on various qualifications; the system therefore erases the fact of the prior conviction and restores the qualifications. The purpose of the system is to facilitate the rehabilitation and return to society of the offender.
B. Requirements for the statutory lapse of a sentence under Article 7 of the Sentence Lapse Act
Under Article 7(1) of the Sentence Lapse Act, where a convict completes the execution of the sentence, or is remitted from its execution, without receiving a sentence of suspension of qualification or heavier, the sentence lapses as a matter of course upon the passage of the following period from that date.
| Type of sentence | Lapse period |
|---|---|
| Imprisonment with or without labor exceeding 3 years | 10 years |
| Imprisonment with or without labor of 3 years or less | 5 years |
| Fine | 2 years |
| Detention / minor fine | Immediately upon completion or remission of execution |
Where several sentences were imposed by a single judgment, the imposition of the sentences loses its effect when the period for the heaviest sentence has passed from the date of completion or remission of execution of each sentence; in this case, imprisonment with labor and imprisonment without labor are regarded as the same type of sentence and their respective terms are aggregated (Sentence Lapse Act, Article 7(2)).
The Supreme Court has also held that, for a sentence to lapse, the convict must, after completing the execution of the sentence and without receiving a sentence of suspension of qualification or heavier, allow the period set in each subparagraph of Article 7(1) of the Sentence Lapse Act to pass (Supreme Court, Mar. 25, 2010, 2009do14793).
C. The effect of the lapse of a sentence
Once a judgment for the lapse of a sentence becomes final, or the statutory requirements for lapse are satisfied, the effect of the imposition of the sentence is extinguished prospectively. Accordingly, although qualifications already lost are not restored retroactively, the prior conviction is extinguished. Because a prior conviction whose sentence has lapsed has its legal effects, arising from the imposition of the sentence, extinguished prospectively under Article 7 of the Sentence Lapse Act, it cannot, for example, be regarded as falling within “a case of having received a sentence of imprisonment two or more times,” an element of the offense of habitual special theft.
D. The lapse of a sentence and the disposition of records of prior convictions
When a sentence lapses, the corresponding entry in the register of convicts is deleted and the convict record card is destroyed (Sentence Lapse Act, Article 8(1), subparagraph 1). However, because there is no separate deletion provision for the investigation data table (criminal record data), it is retained as it is. This point becomes an important issue in practice.
Because the purpose of Article 7 of the Sentence Lapse Act in providing lapse periods for criminal record data is to guarantee the normal return to society of persons with prior convictions, criminal record data whose lapse period has passed must not, in principle, be used as material for appointment and the like (Uijeongbu District Court, Goyang Branch, Feb. 14, 2025, 2024gahap53553).
2. The Legal Structure Where Investigation Record Data Remains Even After the Sentence Has Lapsed
A. Distinguishing criminal record data from investigation record data
To understand how data is handled after the lapse of a sentence, the distinction between the two types of data must come first.
Investigation record data: data on a non-prosecution disposition, a non-referral decision, an acquittal judgment, and the like; under Article 8-2 of the Sentence Lapse Act, it is deleted after the passage of a certain retention period (Sentence Lapse Act, Article 2, subparagraph 6).
Criminal record data: data on the imposition of a sentence of a fine or heavier, etc.; even where the sentence lapses, the investigation data table itself is not deleted (Sentence Lapse Act, Article 2, subparagraph 5).
B. The principle that criminal record data (relating to the imposition of a sentence) cannot be deleted, and its constitutionality
Under current law there is no express legal basis on which a person may request deletion of criminal record data whose sentence has lapsed (relating to the imposition of a sentence of a fine or heavier). That said, the Sentence Lapse Act strictly restricts the inquiry into and reporting of such data, thereby minimizing the possibility of substantive disadvantage arising.
3. The Legal Basis for Requesting Deletion of Investigation Record Data
Investigation record data is deleted after the passage of the retention period where it falls within the following grounds (Sentence Lapse Act, Article 8-2(1)).
| Ground for deletion | Retention period (general) |
|---|---|
| A judicial police officer’s non-referral decision of no suspicion / no right to prosecute / not constituting an offense | Immediate to 10 years, depending on the statutory penalty |
| A prosecutor’s non-prosecution disposition of no suspicion / no right to prosecute / not constituting an offense / suspension of indictment | Immediate to 10 years, depending on the statutory penalty |
| A final court judgment of acquittal / dismissal on the merits / dismissal of prosecution | Immediate to 10 years, depending on the statutory penalty |
| A final court ruling dismissing the prosecution | Immediate to 10 years, depending on the statutory penalty |
| A juvenile division’s no-disposition decision or decision not to commence proceedings | 3 years (newly established July 6, 2023) |
The retention periods by statutory penalty are as follows (Sentence Lapse Act, Article 8-2(2)).
| Statutory penalty | Retention period |
|---|---|
| Death; life imprisonment with labor; life imprisonment without labor; imprisonment with or without labor for a maximum term of 10 years or more | 10 years |
| Imprisonment with or without labor for a maximum term of 2 years or more | 5 years |
| Imprisonment with or without labor for a maximum term of less than 2 years; loss of qualification; suspension of qualification; fine; detention; minor fine | Immediate deletion (however, a non-referral decision is retained 6 months; a suspension of indictment, acquittal, etc. is retained 5 years) |
III. The International Sharing and Inquiry of a Foreigner’s Criminal Record Data After the Lapse of a Sentence, and the Legal Restraints
1. Framing the Issue
This guide examines whether, when a foreigner returns to the home country or migrates to a third country after a sentence has lapsed in Korea, the Korean criminal record data may be shared or inquired into internationally, and what legal mechanisms restrain this. The issue can be analyzed along four axes: (1) the restrictions on inquiry and reporting under Korean domestic law; (2) the relationship between the effect of the lapse of a sentence and the retention of criminal record data; (3) the channels of international information sharing; and (4) recent Constitutional Court decisions.
2. Even After a Sentence Lapses, Criminal Record Data Is Not Deleted
Under Article 8(1), subparagraph 1 of the Act on the Lapse of Criminal Sentences, etc. (hereinafter the “Sentence Lapse Act”), when a sentence lapses, the corresponding entry in the register of convicts is deleted and the convict record card is destroyed. However, because criminal record data (the data on the investigation data table relating to the imposition of a sentence of a fine or heavier) has no separate deletion provision, it is retained as it is in the National Police Agency computer system even after the sentence lapses.
3. Restrictions on Inquiry and Reporting Under Domestic Law
A. The enumerated permitted grounds under Article 6 of the Sentence Lapse Act
Article 6(1) of the Sentence Lapse Act permits a criminal record inquiry or investigation record inquiry, and the reporting thereon, only within the minimum scope necessary for the purpose of the inquiry, and enumerates the permitted grounds (Sentence Lapse Act, Article 6(1)). The case where it is needed for the naturalization, restoration of nationality, or stay permission of a foreigner (subparagraph 6), and the case of the person’s own application (subparagraph 4), fall among the permitted grounds.
B. Prohibition on disclosure, on acquisition for other purposes, and on use for other purposes
| Provision | Content |
|---|---|
| Article 6(2) | Prohibition on disclosure by a manager of an investigation data table, and by a person who inquires in the course of duty |
| Article 6(3) | Prohibition on acquiring criminal record data, etc. for the purpose of using it for a use other than a permitted ground |
| Article 6(4) | Even a person who has lawfully been reported or has acquired the data must not use it for a use other than that prescribed by statute |
Because the Supreme Court has held that the “acquisition of criminal record data, etc.” under Article 6(3) of the Sentence Lapse Act is not limited to acquisition directly from a manager of an investigation data table or the like, the prohibition on acquisition for other purposes applies even where the acquisition is by an indirect method (Supreme Court, Nov. 11, 2010, 2010do8265).
C. Penalty provisions
Article 10 of the Sentence Lapse Act provides for the criminal punishment of a person who, in violation of the above prohibitions, discloses or acquires for other purposes criminal record data, etc., so that a criminal deterrent against unlawful inquiry and disclosure within Korea is in operation.
4. The Possibility of International Sharing and Inquiry, and Its Channels
A. Inquiry for the purpose of a foreigner’s naturalization or stay permission (a lawful channel)
Article 6(1), subparagraph 6 of the Sentence Lapse Act expressly sets out, as a permitted ground for inquiry and reporting, “where necessary for the naturalization, restoration of nationality, or stay permission of a foreigner” (Sentence Lapse Act, Article 6(1), subparagraph 6). Accordingly, when a foreigner returns to the home country or migrates to a third country, where the immigration authorities of that country officially request confirmation of the criminal record from the Korean side, this may be carried out through the person’s own application (subparagraph 4) or through an official channel based on a treaty or agreement between the two countries.
In practice, there are cases in which a criminal record inquiry report is used in the course of screening a marriage-migrant visa (Incheon District Court, Apr. 6, 2023, 2022godan4514), and a case is also confirmed in which, during visa-issuance screening, the defendant (an overseas mission) received and used a criminal record inquiry report on the plaintiff (Seoul Administrative Court, Sept. 13, 2024, 2024gudan4100).
B. Issuance of a criminal record report by the person’s own application
Where a foreigner applies in person because it is needed for foreign entry or stay permission, the person may be reported the results of his or her own criminal record inquiry under Article 6(1), subparagraph 4 of the Sentence Lapse Act (Sentence Lapse Act, Article 6(1), subparagraph 4). Here, the question arises whether the criminal record report issued may include lapsed sentences.
C. Information sharing through extradition proceedings
In extradition proceedings, criminal record information on the offense subject to extradition may be shared. However, this is a lawful channel falling within Article 6(1), subparagraph 1 of the Sentence Lapse Act (where necessary for criminal investigation or trial), and is carried out only under the strict requirements of the extradition treaty and the Extradition Act.
D. The use of criminal records in U.S. detention cases following forced removal
In the case of the United States, a foreigner who has been refused entry on grounds such as a criminal record, or who has become subject to forced removal for criminal or terrorist activity, may be detained even after the removal period, and in this process the criminal record becomes an important basis for the determination. This shows that even a foreigner whose sentence has lapsed in Korea may have the criminal record used in entry screening under the domestic law of the destination country.
5. The Limits of the Legal Mechanisms Restraining International Sharing
A. Korean domestic law cannot be applied extraterritorially
The inquiry and reporting restrictions of the Sentence Lapse Act apply to managers of investigation data tables in Korea and to persons who inquire in the course of duty. Accordingly, where, after a foreigner has returned to the home country, that country’s immigration authorities or investigative agencies inquire into the criminal record through their own domestic database or a separate international channel, the Korean Sentence Lapse Act cannot directly regulate this.
B. Restrictions on a private organization’s demand for a criminal record
The court has held that the mere fact that a private organization, by its self-governing rules, recognizes officer eligibility only for persons without a certain criminal record does not give it authority to require an officer candidate to submit a criminal and investigation record inquiry report including lapsed sentences (Uijeongbu District Court, Goyang Branch, Feb. 14, 2025, 2024gahap53553). This principle applies to domestic private organizations and does not apply directly to foreign institutions or organizations.
C. The absence of an inquiry authority for financial institutions such as credit unions
Article 24-2(3) of the Enforcement Decree of the Credit Unions Act provides that a union or its chairperson may process personal information, such as criminal record data, in order to confirm officer-eligibility restrictions; however, this is merely a basis for the authority to process personal information internally, and is difficult to regard as also conferring an authority to inquire into the criminal record data held by the prosecution or the police.
6. Comprehensive Summary
| Category | Content |
|---|---|
| Whether criminal record data survives after the lapse of a sentence | Survives (no deletion provision; Constitutional Court held it constitutional) |
| Restrictions on inquiry and reporting under domestic law | Possible only within the enumerated permitted grounds of Article 6 of the Sentence Lapse Act; criminal punishment for violations |
| Lawful international sharing channels | (1) the person’s own application (subpara. 4); (2) for the purpose of a foreigner’s naturalization or stay permission (subpara. 6); (3) extradition proceedings (subpara. 1) |
| Limits on providing criminal record data on a lapsed sentence | Provision beyond the permitted scope may infringe fundamental rights |
| Limits of the extraterritorial application of Korean domestic law | An inquiry under the destination country’s domestic law cannot be regulated by the Korean Sentence Lapse Act |
| Practical advice | Where a foreign client plans to migrate, the criminal-record screening standards under the destination country’s immigration law need to be confirmed separately |
In conclusion, the Korean Sentence Lapse Act strictly restricts the inquiry into and reporting of criminal record data within Korea, but the criminal record data on a lapsed sentence itself is not deleted and is retained; and where, when a foreigner returns to the home country or migrates to a third country, that country’s immigration authorities request an inquiry through an official channel, reporting may be carried out under Article 6(1), subparagraph 4 or subparagraph 6 of the Sentence Lapse Act. Korean domestic law cannot completely block such international sharing, and an inquiry under the destination country’s domestic law lies outside the scope of regulation of the Korean Sentence Lapse Act.
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