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Mar 28, 2009

Testing the Con. Court Tests

By Sean Hayes (Korea Times 3/26/09)

In my column, last week, I discussed a case at the Constitutional Court of Korea considering the ban on night protests. The article detailed the test used for time, place, and manner regulation of speech and assembly in the United States.

As I mentioned in the column, in the United States, a law concerning assembly will be upheld if it is a reasonable time, place and manner regulation.A reasonable time, place, and manner regulation is content-neutral, has an important government interest, is narrowly tailored to achieve the interest, and provides viable alternative channels for communication.

The test was developed in the United States and has been adopted, in part, by many non-American courts.The regulation, in Korea, would likely meet the American test.

However, in Korea, the law may be analyzed in a different manner because of notable differences in the text of the Korean Constitution.All too often, Korean scholars fail to give credence to the text of the Constitution and blindly hammer American, German, Japanese, and French legal tests into a uniquely Korean document with a uniquely Korean history behind the text.

This not only leads to a lack of understanding of the historically developed freedoms and rights evident through interpretation of the text of the Korean Constitution, but also creates a situation that leads to the destruction of the institutional integrity of courts. Courts receive power to interpret and declare laws unconstitutional through the Constitution.

If we allow courts to adopt foreign constitutional law, with no foundation within the text of the Korean Constitution, we are then simply allowing courts to have powers not granted through the Constitution, and thus usurp powers from other branches or the people. To begin our analyses we should look to the text of the Korean Constitution.

The Constitution guarantees the freedom of assembly by noting in Article 21 (1) that: ``All citizens shall enjoy freedom of speech and the press, and freedom of assembly and association.'' The clause creates the freedom of speech, press, assembly and association in terms that resemble the U.S. Constitution.

The Korean Constitution provides additional protection of these freedoms by noting in Article 21 (2) that:  ``Licensing or censorship of speech and the press, and licensing of assembly and association shall not be recognized.'' The Korean word that was translated into the English word ``licensing'' refers to the act of allowing one to do an act only after the act is authorized by a controlling authority.If literally interpreted, the clause may be considered unique when considering the freedom of assembly in other nations.

Does the clause mean that the government can't require the application for a permit prior to an assembly? If so, Korea would be the only country that I know of, that doesn't have a permit system for at least some assemblies.Thus, I think it is reasonable to conclude that the term assembly, must not mean simply assembly, but must mean a particular type of assembly. The word in Korean that is used for the English word ``assembly'' refers more exactly to a gathering or meeting.

The word, in of itself, may refer to a ``peaceful gathering,'' since the word naturally is used only for gatherings that are peaceful. Thus, a possible interpretation of the Article 21 (2) is that all peaceful gatherings are absolutely protected and thus no prior authorization can be required for peaceful gatherings.

Article 21 (4) also limits the scope of protected assemblies. The article notes that: ``Neither speech nor the press shall violate the honor or rights of other persons nor undermine public morals or social ethics.'' An assembly, naturally has elements of speech as part of the assembly, therefore a logical reading would be that assemblies can not ``violate the honor or rights of other persons nor undermine public morals or social ethics.''

Therefore, a reasonable reading is that all ``peaceful gathering'' that don't ``violate the honor or rights of other persons nor undermine public morals or social ethics'' are absolutely protected.The key problem that the Constitution still doesn't seem to answer is whether the government has the power, prior to the action of holding an assembly to require a permit and whether certain blanket prohibitions of assemblies at certain times and places is permitted under the Constitution.

It seems in all likelihood from the history of the Korean Constitution and Constitutional Court case law that ``prior restraint'' of speech and assembly that may damage the rights and freedoms may be allowed when appropriate alternative channels are available.

It will be interesting to see if the Constitutional Court will apply to this case the American ``clear and present danger test,'' other tests, or choose to rely, as is often the case, on the overly used and under-analyzed Article 37 (2) catchall balance to either declare the law banning night protests constitutional or unconstitutional.


New York attorney Sean Hayes leads the International Practice Group (IPG) at J & S Law Firm. Sean Hayes formerly worked for the Constitutional Court of Korea and as a professor of constitutional and contract law. Sean Hayes may be contacted at: or

Mar 23, 2009

Ban on Night Protests

By Sean Hayes (Korea Times 03/20/09)

The Constitutional Court heard oral arguments, last week, in a landmark case concerning the right to assembly. The case will have a lasting impact on the government's ability to handle serious difficulties ― violence, disturbance of the peace and the destruction of property by an oft-violent liberal radical minority.

The case concerns a Korean law prohibiting protests at night. Some protesters during last summer's rallies against the importation of U.S. beef and other demonstrations were prosecuted under the law.

The law allows violators to receive a sentence of up to one year in jail or a 1-million-won fine. The facial purpose of the law is to prevent protests from causing injuries and damage to property. As most of us know, many peaceful protests in Korea have turned violent at night.

In the not so distant past, protests over the importation of U.S. beef led to, amongst other things, numerous injuries to police officers, the destruction of public property, Seoul-wide traffic congestion and lost revenues for businesses.

Based on the request of a liberal political activist, the Seoul Central District Court referred a case concerning a prosecution, under the law, to the Constitutional Court for adjudication. The district court, in its petition to the Constitutional Court, stated that: ``The Constitution basically guarantees outdoor protests without time restrictions.

Therefore, the law banning nighttime rallies should have been applied to cases that can apparently destabilize society. But it is now being too generally applied.'' The Korean Constitution declares in Article 21 (1) that: ``All citizens shall enjoy freedom of speech and the press, and freedom of assembly and association.'' Article 21 (2) follows by noting that: ``Licensing or censorship of speech and the press and licensing of assembly and association shall not be recognized.''

The language of the Constitution seems to absolutely guarantee that ``licensing of assembly and association'' is banned. However, as with the First Amendment to the U.S. Constitution, absolute language doesn't necessarily guarantee that courts would not impose limits on rights and freedoms.

For example, in the United States, ``reasonable time, place, and manner'' regulations on speech, assembly, and association are upheld by the courts.

For a law to be considered a reasonable time, place and manner, regulation of speech and assembly, first the law must be ``content-neutral.'' A content-neutral law is one that doesn't regulate a specific message. The night protest ban, in the United States, would be considered content-neutral. It prohibits facially and in practice all protests at night.

Secondly, the law must serve an ``important government interest.'' In this case, the government would contend and would likely prevail, in the United States, with the contention that the important government interest is maintaining peace and security. Laws that prohibited loud noise at night, focused residential picketing, protesting with close proximity to abortion clinics, and completely blocking roads or sidewalks were upheld.

Thirdly, the law must be ``narrowly tailored'' to serve the important government interest. This may pose a difficulty for the government in the United States. The law may be successfully labeled overbroad, since many night protests are peaceful and it may be possible to determine which protests will be violent. Thus, it may be successfully contended that only those protests that may damage the peace and security that will be held at night may be prohibited, thus an absolute ban on night protests is an overbroad burden on the freedom of assembly and hence not narrowly tailored.

The government, however, may successfully argue the reality that it is necessary to absolutely ban night protests because of the scale of the protests at night, the high likelihood of violence and the ready availability of numerous viable alternative channels.

Lastly, there must be viable alternative channels of communication. Daytime protests, weekend protests and the numerous other forms of protest in the United States would be likely held to provide ample alternative channels for communication.

This law in Korea hopefully is analyzed through a similar-type test and not the overused and under-analyzed Article 37 (2). The article states that: ``The freedoms and rights of citizens may be restricted by act only when necessary for national security, the maintenance of law and order, or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated.''

The article is too often used as a tool to balance away rights and freedoms with no more than a cursory explanation for the reason, with little basis in the application of logically applied and developed legal tests and principles based on the text of the Korean Constitution.


Mar 5, 2009

Opening Door to Legal Change

By Sean Hayes (Korea Times 03/05/2009)

On Monday, the National Assembly passed a bill that permits law firms from countries with free trade agreements with Korea to operate ``foreign law consultancy businesses'' and individuals from these countries to be registered as ``foreign legal consultants.''

At present, the best estimate is that over 400 foreign attorneys work and reside in Korea. The vast majority are Koreans. These attorneys work for law firms, accounting firms, and corporations. Many of these attorneys play lead and/or vital roles in representing Korean and non-Korean clients in a vast array of matters concerning Korean and international legal matters.

These attorneys are not technically ``attorneys,'' can't be paid directly by clients, normally don't sign work product, and can't appear in court.But they do play vital functions for clients and Korean firms by bridging the gap between the high expectations of clients and the often low client service skills of Korean attorneys, adding needed specialization to firms, and improving, overall, the quality of work products.

Korea, prior to this bill, had no formal regulation governing these attorneys with the exception of the Attorney-at-Law Act that prohibits the unauthorized practice of law. To my knowledge, no foreign attorney has been prosecuted for the unauthorized practice of law.This bill, passed on Monday, is part of the three-stage process for the opening of the Korean legal services market. The three-stages were formulated and incorporated into the Korea-U.S. Free Trade Agreement (KORUS FTA).

In the first-stage foreign firms are permitted to operate foreign legal consultancy businesses, but are not permitted to hire or partner with Korean attorneys, CPAs, patent attorneys or other like professionals. These ``consultancy businesses'' may only advise clients on issues concerning international law and the laws of the nation the business is from. The bill also permits and potentially mandates foreign attorneys to be registered as ``foreign legal consultants.''

These attorneys must have worked in a foreign jurisdiction for three years. If the attorney has already been employed in Korea for over two years the attorney is only required to have worked in a foreign jurisdiction for one year. A large percentage of foreign attorneys, presently working in Korea, don't meet this requirement.

The first-stage will lead to no noticeable change in the legal market in Korea. The stage is only intended to give Korean firms and attorneys the needed push toward improved competitiveness and few foreign attorneys and firms will choose to register, since there is no noticeable benefit to registration.In the second-stage, which is scheduled for 2011, foreign law firms are permitted to enter into agreements with Korean law firms and in the third-stage, which is scheduled for 2016, foreign law firms could establish joint-ventures with Korean law firms and hire Korean attorneys.

Korea is a dynamic nation with a future that is hard to predict. The third-stage of this plan will likely meet fierce resistance from the Korean bar. If Korea wishes to truly become a part of the global community it must shed the blanket of protectionism and open its service sectors and all other sectors to competition from abroad.