Changes to Korea’s Franchise Law May Lead to an Increased Potential for Criminal Sanctions: Franchise Law Basics

The Fair Transactions in Franchise Business Act of Korea was amended on August 13, 2013 and became effective on August 14, 2014.  The, facial, reason for the change in the Act is noted in an announcement by the Korean government on the reason for the amendment.  The facial reason for the amendment shows the rationale for imposing criminal sanctions for acts that don’t constitute “crimes.” Korean Government’s Stated Reason for the Amendment: “Recently, there is a rapid and growing tendency to engage in franchising because of the growth of the retired population, an unemployment crisis and the easiness in establishing a franchise business.  But damage from franchisers by providing false or exaggerated information, unfair restrictions on business hours, imposing excessive penalties, frequently compelling improvement to stores and other unfair transaction is increasing. Therefore, to provide a franchisee or a prospective franchisee with accurate and adequate information; to prevent new types

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Definition of Rape in Korea Elaborated on by the Korean Supreme Court: Criminal Law Basics

A recent decision by the Supreme Court of Korea may make defending against rape charges a little easier for defendants. The Defendant in the case was convicted by a Korean District and High Court for rape and was sentenced to 1 1/2 years in jail. Facts Found by the CourtThe Supreme Court found, among other things, the following facts: Defendant was the ex-boyfriend of the Accuser; The Accuser had a boyfriend; The Accuser was drunk and the Defendant may have been drunk at the night of the alleged rape; The Accuser and the Defendant met each other “spontaneously” and drank together; The Accuser and the Defendant went back to a motel room together; The Accuser and the Defendant had sex; The Accuser screamed that “this is rape” and the Defendant stopped having sex with the Accuser; The Defendant noted that he would take the Accuser to her home, but she

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Korean Supreme Court Rules Contingency Fees for Criminal Cases Illegal

The Korean Supreme Court has, recently, ruled that an attorney’s contingency fees in criminal cases are against public policy, and are, therefore, illegal in Korea. The Supreme Court of Korea cited two bodies of law to arrive at its decision: Korea’s Civil Act and the Korean Attorney-at-Law Act. Article 103 of Korea’s Civil Act (Juristic Acts Contrary to Social Order) states that a “juristic act that is contrary to good morals and social order shall be null and void.” Article 1 of the Attorney-at-Law Act states that the “mission of any attorney-at-law shall be to defend fundamental human rights and realize social justice.” Article 2 of the Attorney-at-Law Act states that “each attorney-at-law shall perform his/her duties independently and freely as a legal professional.” The Supreme Court, then, ruled that contingency fees in criminal cases: Harm the public’s perception of lawyers – someone whose mission it is to defend fundamental

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South Korea moves to Remove Statute of Limitation on Murder

In South Korea, murder has a 25-year statute of limitations. This means that someone cannot be prosecuted for committing murder 25 years after the murder was committed. A review committee of the National Assembly’s Legislation and Judiciary Committee on Wednesday has just pushed through a bill that would remove the statutory 25-year statute of limitations on murder. The bill now awaits approval at the Assembly’s plenary session on July 24, 2015. The revision would not apply to manslaughter (a lesser form of homicide lacking adequate “malice” to qualify as a murder) or parricide (the killing of one’s parents). The move to remove South Korea’s statute of limitations on murder has been an ongoing one. In 1999, a 6 year old boy was murdered by an unknown attacker who doused him with sulfuric acid. At that time, the statute of limitations on murder was just 15 years. Korea’s Supreme Court last

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South Korea’s Military Conscription Law Challenged by Religious Conscientious Objectors

South Korea’s mandatory military conscription law is once again being challenged by religious conscientious objectors. The Constitutional Court held a public hearing on Thursday to determine whether religious objectors to military service are still subject to the same punishments that are given to other citizens who refuse to perform their military service. South Korean law mandates that citizens who refuse to perform military service, without a valid reason, are subject to imprisonment for up to three years. Currently, religious conscientious objections are not recognized as a valid reason to not serve.  The Constitutional Court upheld the conscription law when it was challenged in 2004 and 2011. According to a legal representative of conscientious objectors who filed a petition against the law, 706 young men are currently imprisoned in South Korea for refusing to perform military service – many due to religious conscientious objections. A lawyer for South Korea’s Defense Ministry,

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Bail Granted in Korea for Alleged Violations of Korean Banking Laws

We are proud to announce that we, recently, prevailed in a white-collar criminal matter concerning an alleged crime involving violations of Korea’s Banking Laws.  The allegations stemmed from transactions between a payment processor and a major Korean financial institution.  Bail was granted for the non-Korean banker/businessman and, promptly, upon the granting of the bail by the Korean court, the Seoul Prosecution decided to drop all charges against our client.  In Korea, it is very difficult to obtain bail in cases that are being vigorously pursued by the Prosecution.  The conviction rate, in Korea, is greater than 99%. We are proud to note that our criminal defense team has been successful in obtaining bail and not guilty verdicts for the majority of our foreign clients.  Our success is based on the dedication, passion and proactive nature of a very experienced retired judge, prosecutor and one of Korea’s best known expat attorneys.

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Child Abuse in Korea – “Professionals” Required to Report Crime: Sentences Increased & Police Receiving More Training on the Needs of Victims

Most crimes, in Korea, related to the most vulnerable in society are seeing more attention by the police & prosecution and greater sentences from judges – child abuse is no exception. In Korea, child abuse may be punished under the Act on Special Cases Related to the Punishment etc. of Child Abuse Crimes (아동학대범죄의 처벌 등에 관한 특례법).  Some individuals may be held civilly liable (fined) for not reporting child abuse. The law defines a child as anyone under the age of 18 (legal – Western age).  To report a crime, it is advisable to contact your local police office or call 112.  A formal statement may be given to the police in writing.  If you are unable to communicate in Korean, it is advisable to bring a Korean-speaking friend. Child Abuse in Korea Defined The following is considered, in Korea, child abuse: Harm inflicted on child that may damage

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Korea’s Criminal Procedure Act: Pre-Trial Detention in Korea

The Korean Criminal Justice System works, in many aspects, very differently from the American Criminal Justice System. One aspect of the system that leaves many of our clients puzzled is the pre-trial detention system in Korea.  Korea’s Criminal Procedure Act Article 92 details the maximum detention periods while the Korean prosecutor’s investigation is pending.  The following does not apply, in many respects, to those under the SOFA: After being arrested, a defendant may be held for up to 48 hours without being officially charged. In the United States, in most cases, a defendant may, only, be held for 24 hours.  Depending on the charges in the case, criminal defendants will be held in jail throughout the entirety of the prosecutor’s investigation. The opportunity for bail is very limited. This means that, after the initial hearing in front of a Korean judge an arrest warrant will likely be issued for your

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Did Korea Kill Uber? South Korea vs. Uber

The Wall Street Journal has a new article about Uber’s legal challenges in Korea.  The article is well worth a read.  According to the article, the Korean Communications Commission released a statement that said that Uber Korea violated Korean Law by failing to report its Geo-positioning service to regulators.  As I noted in prior blog posts, many international companies have not reported this service to Korean regulators in violation of this law.  The Seoul Metropolitan Government is fiercely arguing that Korean transport law bans individuals or car-rental firms from providing or facilitating taxi services without a license.  As I mentioned before, the Seoul mayor believes in the freedom for a man to marry a man (Seoul Mayor Supports Gay Marriage), but not for these men to choose who they would like to have them drive them to the chapel. 🙂 The mayor has backpedaled on his gay marriage statements, but

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Not Guilty Verdict for U.S. Government Employee with U.S. 8th Army: Announcement

We are proud to announce that, today, we received a not guilty verdict at the Seoul Central District Court for a crime concerning the trafficking in contraband into Korea.  The Korean prosecution requested, in the matter, a three-year jail sentence for the defendant.  The defendant, a former U.S. senior NCO and, now, U.S. government official working with the 8th Army was found not guilty by a three-judge panel. Last week, we also, had a guilty verdict overthrown in an appeals court for a senior NCO. We are proud to be one of the only law firms, in Korea, to obtain multiple non-guilty verdicts for the men and woman proudly serving the American and the Korean people. Articles on Korean Criminal Law and Korean Criminal Lawyers that may be of interest: Signs that You Hired a Great Korean Defense Attorney Misunderstanding of Suspension of Criminal Sentence in Korea  Foreigners’ Drug use

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Good Criminal Lawyers in Korea Obtain Non-Guilty Verdicts

We are proud to announce that we received a not guilty verdict for a U.S. service member in an appeal of a conviction at the first trial court.  We did not handle the case at the case of first instance. Please when ever you consider hiring an attorney, in Korea, it is best to retain an attorney that, formerly, was a retired judge and will actually work on your case in any matters involving the Korea courts. Please check out the following articles on Korea’s criminal law: Signs that You Hired a Great Korean Defense Attorney Criminal Punishment of Corporations for Actions of Employees Misunderstanding of Suspension of Criminal Sentence in Korea  Foreigners’ Drug use in Korea Criminal Lawyers in Korea Sean Hayes may be contacted at: [email protected] Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for

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Sentences Lower for the Wealthier in Korea – According to Recent Study

The Korea Herald reported on an interesting study regarding sentencing differentials between, inter alia, those that embezzled lower sums of money to those that embezzled greater sums of money.   The study was commissioned by the Supreme Public Prosecutors Office.  I have not taken a look at the study, but will in the near future. The impression by many, in Korea, is that the most noteworthy cases of embezzlement and bribery concerning substantial amounts of money (often presidents, chairman of conglomerates and their family), normally, receive lighter sentences than those that are involved in less noteworthy crimes.  The study seems to substantiate this belief. However, again, I have never read the finding of the study.  The Korea Herald notes, in part, that:  “The courtroom should be the last place where money talks. Many Koreans, however, remain skeptical about whether this saying applies to the local judicial system as they have seen

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Captain of Korean Ferry Receives 36 Year Jail Sentence: Likely Life Sentence for Elderly Captain

The prosecution has requested the death penalty based on a charge of murder.  The captain was found not guilty of the murder charge and guilty of the charge of grossly negligent homicide in the death of 304 passengers. We will be reviewing the decision and will post more details in the near future. I am happy to see that the court did not make a mere political decision.  The facts, clearly, do not equal murder.  What do you think?___Sean Hayes may be contacted at: [email protected] Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw. (c)

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Weekly Korean Legal News From International Law Firm – IPG Legal for the Week of July 28, 2014

Weekly Korean Legal News From International Law Firm – IPG Legal for the Week of July 28, 2014Korean Legal News Reported by the Media on the Week of July 28, 2014 IMC may blacklist Korean builders over collusion Prosecutors continue probe into ferry owner’s driver Foreign workers upset by severance pay formula Restructuring urgent for big Korean companies Relocation of USFK Headquarters to Go Ahead Most Recent Posts from the Korean Law Blog This slot is reserved for the new article Korean Franchise Law Basics for Franchisors “Samsung’s First Family Struggles to Keep Grip on Company” Report by Bloomberg Debt Collection in Korea: Foreign Creditor vs. Bankrupt Korea Debtor Opportunities in Korea’s Growing Tuning & Performance Modification Industry for Foreign Companies ___ Sean Hayes may be contacted at: [email protected] Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked

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Weekly Korean Legal News From International Law Firm – IPG Legal for the Week of July 21, 2014

Weekly Korean Legal News From International Law Firm – IPG Legal for the Week of July 21, 2014Korean Legal News Reported by the Media on the Week of July 21, 2014 South Korea Plans $40 Billion Stimulus to Tackle Weakening Growth Seoul to push tax on corporate cash reserves U.S. Chamber of Commerce chief urges FTA implemantation Workers in Their 60s Outnumber 20-Somethings Mortgage deregulation raises concerns Most Recent Posts from the Korean Law Blog Debt Collection in Korea: Foreign Creditor vs. Bankrupt Korea Debtor Opportunities in Korea’s Growing Tuning & Performance Modification Industry for Foreign Companies Korean Fugitives on the Run: Getting more Difficult with Change of Law Distribution Agreements in Korea: Crawl before you Walk Is Samsung Doomed? No Innovation Price Trap ___ Sean Hayes may be contacted at: [email protected] Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney

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Weekly Korean Legal News From International Law Firm – IPG Legal for the Week of July 14, 2014

Weekly Korean Legal News From International Law Firm – IPG Legal For the Week of July 14, 2014.Korean Legal News Reported by the Media on the Week of July 14, 2014 LG outpaces Samsung in UHD TV panel market in May: data Hana Bank set for merger with KEB Economists Doubt Korea Can Return to Solid Growth Line to Be Listed on Tokyo Stock Exchange Korea ranks third in e-trade readiness Most Recent Posts from the Korean Law Blog Opportunities in Korea’s Growing Tuning & Performance Modification Industry for Foreign Companies Korean Fugitives on the Run: Getting more Difficult with Change of Law Distribution Agreements in Korea: Crawl before you Walk Is Samsung Doomed? No Innovation Price Trap Foreign Account Tax Compliance Act (FACTA) in Korea ___Sean Hayes may be contacted at: [email protected] Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean

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Korean Fugitives on the Run: Getting more Difficult with Change of Law

Korea, last May, changed it law to allow the statute of limitation on crimes not to toll for fugitives.  Before the law change,if a defendant was not sentenced, the statute of limitation could toll (expire), thus, the defendant could avoid a conviction based on the tolling of the statute of limitation. For example, if a person is being questioned for a crime with a ten year statute of limitation, prior to the change in the law, the accused would not be able to be prosecuted after the ten year term expired.  Other articles that may be of interest are: Defamation Law Under Korean Law Adultery in Korea: Suspended Sentences Under Korean Law Required Traits of a Great Criminal Lawyer in Korea: Hiring a Defense Lawyer in South Korea Public Defenders in Korea: 77.6% of Defendants Satisfied with Public Defenders Criminal Lawyers in Korea: Defense Lawyer to Hire and Not to

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Weekly Korean Legal News From International Law Firm – IPG Legal for the Week of June 9, 2014

Weekly Korean Legal News From International Law Firm – IPG Legal for the week of June 9, 2014 Korean Legal News Reported by the Media on the Week of June 9, 2014 Global game makers oppose addiction bill ‘Korean firms should pay more attention to privacy’ Criminal justice in Korea: Interrogations and appointed attorneys< Criminal breach of duty (bae-im) under Korean law Law expert re-elected as judge on UN sea tribunal Most Recent Posts from The Korean Law Blog Samsung Threatens Suit Over Reports of Chairman’s Condition Is the Sewol Tragedy a ‘Korean Self Portrait’? by Tom Coyner Korean Economy Strong this Year According to Moody’s Korea in EU’s Hot Water: Korean Fishing Sanctions by EU Korean Tax Laws on Entertainment Companies in Korea: Overseas Tax Deductions ___ Sean Hayes may be contacted at: [email protected] Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the

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Defamation Law Under Korean Law

As an attorney educated in the United States, one of the greatest differences I’ve noticed between the Korean and American legal systems is in the area of defamation. Back in the US, the extent to which speech can be curbed by the law is tempered by First Amendment protections.  US law protects truthful statements and even false statements, when in the form of parody, hyperbole, or not with malice etc. In the case of potentially defamatory speech, the burden falls on the accusing party to prove the statement false. This, of course, is all in the name of safeguarding Constitutionally guaranteed freedom of speech, and its something entirely different from Korean law. Essentially, in Korean law, reputational damage is the core element in a defamation claim, rather than the truth or falsity of the statement. Thus, very much unlike US law, Korean defendants in defamation suits have, typically, the burden

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Adultery in Korea: Suspended Sentences Under Korean Law

News of the Korean authorities having blocked adultering spouse hook-up site “Ashley Madison” has been getting a lot of attention this month.  Citing moral issues, the Korean government blocked internet users from accessing the site from Korea.  Those that are more tech savvy can, obviously, get around this block. The Republic of Korea is one of the few countries in the industrialized world where adultery is a criminal offense and still punished.  It is, however, rare for someone to be imprisoned under the adultery law.  Only a few years back, however, imprisonment was not all that uncommon. It is notable that under this law, a guilty verdict does not necessary result in an immediate prison sentence.  It is actually very common in Korea for courts to suspend prison sentences, even when that party has been found guilty. While the Korean Criminal Act provides an adulterer be punished by imprisonment for

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