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Aug 23, 2011

So Your Korean Company's Employees Violated Law in Korea: What you Should Do? by Tom Coyner at Soft Landing Consulting

This is not a pleasant topic, but multinational firms and/or their employees occasionally trip over the law in Korea. Actually, this is sometimes easier to do than one might imagine. To illustrate the point, a long-term foreign resident investigated why his vehicle had been issued a parking ticket, given that others had been parking along the same curb for years. He soon discovered that most parking along curbs in Seoul is technically illegal. And such is the case for many things in Korea. This foreigner, a somewhat notorious wag, declared, “The whole country is illegal!” That is obviously an exaggeration but the notion works surprisingly well as a working theory.

The problem can be traced to two major areas. First, the Korean laws are open to interpretation by enforcement officials and the community at large, given their vagueness and/or sometimes their impracticality. And second, since society is routinely cutting legal corners, many businesses would be at a significant economic disadvantage if their managers adhered to the letter of the law in Korea.

To make things interesting, occasionally the Korean authorities crack down on transgressors of a certain regulation or law by suddenly arresting, without warning, an individual as an example to the community. Too often the defense is simply, “Everyone else was doing the same!” -- which may be true, but doesn't get you off legally.

Should you find one of your employees in legal jeopardy, and your company is willing to come to the rescue, you may wish to consider the following.

The Korean prosecutor, to a surprising degree, acts also as judge and jury (Korea does have judges, on the civil law model, but not juries - except for the jury system being tested). The Korean legal system offers a great deal of latitude to its prosecutors. Should a case formally make its way to court, there is at least a 99% probability that the prosecution will prevail.

However, the prosecution drops many cases prior to trial. The reason for this is that many prosecutors are more concerned about social justice than the mechanical aspects of the law. It is the duty and responsibility of the prosecutor to consider all mitigating factors. Also of huge importance is the defendant’s attitude in cooperating with the investigation and, if truly guilty, the degree of expressed remorse and contrition. If the prosecutor believes the first-time offender has learned a life lesson, there is a good chance the case will be dropped or a trival sentence is handed down if the crime is not a major one.

If the detained person is a foreigner, you should immediately contact that person’s embassy. Normally the police will contact the appropriate embassy as well. However, it may be critical for you to develop a rapport with the responsible embassy official to ensure that the detained foreigner’s legal rights are respected. Also, you may get some helpful advice from the embassy official, based on his or her prior experience in dealing with similar matters. In any case you will want to contact a Korean attorney with relevant experience immediately.

Given all of this, any outside assistance must be rendered quickly. Time is of the essence. The longer cases gestate within the legal system, the larger the number of prosecution officials who become involved, adding to the complexity.

Furthermore, one should keep in mind that the investigator can hold a suspect up to 48 hours without showing cause. During this time, the suspect is simply detained. At a brief court hearing within that period, the prosecution must make its case for formal arrest and the court normally rules within a few hours. Most of the time this step is a formality since, if the matter goes before a judge, it is extremely likely the prosecution will prevail. Therefore, it is in everyone’s best interests to try to persuade the prosecution to exercise maximum leniency during the first 48 hours. A common error is to spend too much time shopping around for legal counsel instead of taking preemptive action during this critical time.

If the suspect is formally arrested and placed in jail, it is not too late for a pre-trial acquittal -- but it does becomes a bit more complicated since the case has sunk down a layer deeper into the legal system. A Korean prosecutor may still reduce or even drop all charges, but now he or she must have a stronger argument to do so. Prosecutors in Korea are held responsible for their decisions to defer or to prosecute their cases.

There are several ways to appeal to a prosecutor. First, there are face-to-face meetings. Most Korean prosecutors are very approachable, and many regard themselves as part social worker, responsible for improving society. If they honestly believe full prosecution would render a greater injustice, they will often back off.

Another route is to hire an attorney who was once a prosecutor and who is well regarded by his or her former colleagues. At the same time, a word of encouragement for leniency from someone else in government can have surprisingly positive results. So it can be critical to solicit help from parties not directly related to the case.

In short, if one chooses to act, do so quickly and creatively and give your lawyer in Korea the power to get actively involved. It is important to reach the Korean prosecutor and/or investigator as soon as possible. At the same time, check among your network of Korean allies to discover who knows whom in the legal system. You are likely to be surprised at who may be of special value in a time of such difficulty.

Korea has a rapidly maturing legal system, but its cultural foundation still retains more concern for overall social justice than for strict adherence to the letter of the law. And as in many other aspects of Korean society, personal relations often have a major impact on the outcome.

The system works well when the foreign manager quickly puts many western notions of legal strategy aside. So, if there is ever a time to “go native,” it is certainly when one has to deal with Korean legal jeopardy.

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Tom Coyner is President of Soft Landing Consulting (www.softlandingkorea.com), a sales and business development consultancy and he serves as senior commercial advisor to IPG Legal. His professional involvement with Korea began in 1975.

The original article may be found HERE .  The article appeared in the Korea Times.