Revocation of SOFA Status of U.S. Military Contractor

A recent case IPG Legal handled sheds light on how you can lose your status/visa and all rights and privileges under the KOR-US Status of Forces Agreement (“SOFA”). IPG Legal is the most experienced highly-rated law firm in Korea handling criminal matters for expats.

Cancelation of SOFA Status

The defendant, a male U.S. citizen, signed an International Assignment Agreement to work under the SOFA as an employee of a defense contractor contracted by the U.S. Department of Defense. The defendant was stationed to a U.S. Air Force Base in Korea and entered the Republic of Korea to fulfill his duties at the base.

Can your SOFA Status be Revoked
During a Korean Criminal Trial?

Under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States, the defendant, as a “civilian employee who is employed by, works for, or accompanies the United States Armed Forces in Korea,” is classified as a “civilian component” under Article I(b) of the Status of Forces Agreement between the two countries. Thus, the defendant was granted all rights and privileges under the SOFA.

However, the defendant was apprehended with narcotics during a baggage inspection at Incheon Airport Customs. Following the initiation of the prosecution’s investigation, the defendant was dismissed from his position with the U.S. defense contractor. The dismissal led to revocation of the SOFA status.

The Constitutional Court of Korea ruled that, in criminal trials in Korea, the determination of criminal facts and responsibility should be based on the time of the offense (Criminal Code, Article 1(1)), but whether jurisdiction applies should be judged at the time of trial (Constitutional Court En Banc Decision, July 30, 2009, Case No. 2008Hun-Ba162). In a similar case (Suwon District Court, Pyeongtaek Branch, Case No. 2019Gohap77), the defendant, originally subject to the SOFA Agreement due to his employment, lost that status when his contract was terminated before the korean court’s ruling. The court recognized that the defendant no longer fell under SOFA’s protections as of April 19, 2019, prior to the judgment (Judgment delivered on August 23, 2019).

Similarly, the defendant in the case we handled lost his SOFA status when his employment contract was terminated. Therefore, he no longer qualified as a “civilian component” under Article I(b) of the SOFA Agreement and is no longer protected by its provisions. However, even with this reality we won a favorable outcome for our client that required our client to service no time in prison pre or post-conviction.

South Korea imposes strict penalties for drug offenses, sexual crimes, assaults that lead to injuries, fraud matters and even drunk driving. If you find yourself in such a situation, you may no longer be entitled to trial under the SOFA. The most important thing in all criminal matters in Korea is to, immediately, retain the best lawyer you can afford and make sure that if the case may go to trial that you have a retired judge as one of your lawyers along with a lawyer with substantial experience with Korean Immigration. IPG is rated a top law firm for assisting foreigners in criminal matters.

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by Jiwon MIN