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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Required Traits of a Great Criminal Lawyer in Korea: Hiring a Defense Lawyer in South Korea

There are few great criminal lawyers working in Korea, because of the nature of the Korean criminal justice system and other realities. In Korea, in all cases, where you are accused of a crime and you fear that you may be sentenced to time in a Korean jail, may be deported from Korea or the Korean conviction may harm your future – hire, quickly, an experienced and proactive attorney in Korea with experience in Korean criminal law prior to any interrogations by the Korean police or prosecution. As I mentioned in a post entitled Criminal Defense Lawyers in Korea: Who to Hire – Who Not to Hire: “Sadly, few lawyers, in Korea, are useful for criminal matters, since few lawyers are proactive when it comes to matters concerning the Korean government, experienced in criminal matters for foreigners or willing to upset the status quo (aggressively engage the prosecutor)” Here are

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Public Defenders in Korea: 77.6% of Defendants Satisfied with Public Defenders

The prosecutor office, recently, conducted a survey of defendants and found that 77.6% of defendants were “satisfied” with their public defender.  The survey, only, polled 134 suspects and, only, for a five week period.  It would be interesting to see how many of the suspects plead innocent.  I would assume most of these defendants plead guilty, thus, the role of the public defender was not as significant of a role as a case when a defendant is pleading guilty.  A few interesting results from the survey:  104 of respondents (77.6%) noted that the appointed lawyer “was a great help to defendants”  28 respondents (20.8%), noted that the appointed lawyer “was not that helpful.” 100 respondents (82%) noted that the appointed attorney “answered requests and advised faithful.” Overall, the survey is a positive reflection on a public defender system.  The system has, greatly, improved over the past decade.  Of course, if

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Executive Compensation Necessary to be Publicly Disclosed in Korea: Korean Commercial Law

Until a recent amendment to the Korean Commercial Code, the compensation of executives in listed companies was not required to be disclosed to shareholders.   Most developed economies require this disclosure. The prior law, only, required the total compensation for all directors to be disclosed to shareholders. The new rule, which comes into effect on November 29, 2013, requires that all registered directors of companies annual compensation be disclosed if the amount of the individual’s annual compensation exceeds KRW 500 million Korean won. The amended Korean Commercial Code, also, requires that companies disclose the criteria for choosing the compensation.  We suspect to see cases filed related to the payment criteria and differentials in payment between certain directors. Some family-controlled companies will, likely, drop some family members from boards. These family members will, likely, be paid as mere company employees and, not, as board members. Thus, circumventing the purpose of the

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Criminal Convictions Finally Leading to Prison Sentences for Chaebol Leaders

Chey Jae-Won, younger brother of Chey Tae-Won (the former chairman of SK Group that was convicted of embezzling USD 43 million and sentenced to four years in prison earlier this year) just had his acquittal overturned last week by the Seoul High Court.  Jae-Won had, until now, managed to avoid experiencing the same fate as his older brother by convincing the Court that he had little to do with his brother’s fraudulent conversion of SK Group’s assets.  Now, Jae-Won is looking at a 3 1/2 year prison sentence that almost matches his older brother’s 4. Jae-Won’s conviction comes just a week after Koo Cha-Won (former chairman of LIG Group) and his oldest son were themselves slapped with three-year prison sentences for issuing USD 198 million of fraudulent company bonds. It has been a common complaint amongst many Koreans that chaebol leadership is never held to account in the court system. 

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Ministry of National Defense Abolishes Entertainment Soldiers

The majority of Korean men have to serve two years in the Korean military.  Refusal to serve or attempting to avoid service, typically, leads to a jail sentence.   The situation, in the past, was a little less burdensome for the rich, connected and for entertainers (singers, actors etc.).  The situation is changing.  Many of rich and connected that have attempted to avoid military service have been prosecuted and now entertainers will, also, have to serve in a fashion typical to all other men in Korea.  Some Entertainers, previously, served in a special unit called, “Volunteered Public Relations of the National Defense (국방홍보지원대).”  The soldiers in this Unit are, often, referred to as “Entertainment Soldiers (연예병사).”   This “Military” Unit consists, mainly, of male celebrities whose purpose is to entertain other military units and sometimes the public.  However, with the recent scandals involving soldiers, the Ministry of National Defense decided to abolish

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Korean Unions Turning Violent Again: Solution is Jail

Labor competition from Korea’s Asian neighbors is leading to Korea becoming a less than favorable place for international and Korean manufacturers.  The Korean unions make the situation more dire. China, Vietnam, Indonesia, Malaysia and other Asian countries are, in many cases, able to produce products that are of an equal quality to Korean products when the operations are managed by skilled management.  Korea, however, in many cases has a technological advantage that allows it to still dominate in certain industries, but the gap is quickly closing. This reality is worrying to many of us residing in Korea.  Increasingly, even Korean companies are choosing to forego investment in Korea for more cost effective and business-friendly destinations. The issue is personified in the recent clash at a Hyundai Motors plant.  A group calling itself the Hope Bus caused the injury of more than 100 people according to reports by local Korean media. 

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Korea Legal News for the Week of June 16, 2013

This Week’s Korean Legal News Reported by Media North Korea says surveillance leaks prove U.S. is “kingpin” of rights abuse Mark Zuckerberg Went To Korea To Ask Samsung To Make A Facebook Phone And Samsung Said No Korea completes price talks in Thai Flood Prevention Project After FTA, EU exports fall S.Korean shipper STX Pan Ocean seeks protection from US creditors Korea toughens sex crimes law Korea should address its weakness to tackle liquidity risk: BOK head Park unveils ‘Government 3.0’ Allies agree to tougher demands on the North Most Recent Posts from The Korean Law Blog Negotiating a Joint Venture Agreement in Korea: Shareholder Agreements in Korea Definition of Defamation in Korea Selling & Marketing in Korea Through Distributors and Other Indirect Sales Channels Censorship Prohibited in Korea: Entertainment Law Cases in Korea Definition of Copyright in Korea: Ideas vs. Expressions Definition of “Author” under Korean Copyright Act: Entertainment

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Korea Enforcing Laws: Seoul Police Arrests Union Leader

The head of the Ssangyong Motors union has been arrested and detained by the Seoul Metropolitan Police Department for setting up tents for union protestors in the front of a heavily touristed downtime palace.  The arrest was obtained via a court detention warrant. The Seoul City, during past demonstrations, has been crippled by demonstrators hellbent on disrupting the lives of fellow citizens.  Protests have even lead to the burning of police buses and the destruction of other city property.  The union leader has violated a law on setting up illegal facilities multiple times and was arrested while on probation.  It seems the purpose of these protests has little to do with the freedom of expression and more to do with attempting to occupy a space in order to disrupt the lives of residents and tourists.  _______Sean Hayes may be contacted at: [email protected] Sean Hayes is co-chair of the Korea Practice

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How to Protect your Brands, Trademarks and other IP in the Korean Market in 10 Not So Easy Steps

I just participated as a panelist for the United States Commercial Service Trade Winds-Asia Seminar for U.S. companies considering investing and/or exporting to Korea, China, the Philippines, Japan and Taiwan.  The Seminar brought together over 150 U.S. investors and exporters of products and services.  The U.S. Commercial Service did a wonderful job bringing together some of the leading experts on doing business in Korea.  I was impressed.  At the event, the most frequent question I was asked was related to protecting companies trademarks and other intellectual property.  Additional posts will be written on this topic by Tom Coyner – Senior Commercial Advisor for IPG Legal and head of Soft Landing Korea and myself. TOP TEN THINGS TO DO TO PROTECT YOUR BRAND IN KOREA Do a Complete Intellectual Property Audit Form a team to audit all your intellectual property including your patents, trademarks, service marks, books, manuals, videos, software, know-how,

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Korea’s President Lee to Pardon Cronies and “Too Big to Fail” Companies

Once upon a time, end-of-tenure presidential pardons served a useful purpose as reformers tried to correct past wrongs, such human rights violations, which were too politically problematic at those times. And in some cases involving foreigners, pardons could be used to flush jails of non-Korean miscreants to planes heading for their home countries. But over the past decade, this presidential prerogative has been misused to rescue political cronies and executives of “too big to fail” enterprises, without risking ensuing political blowback. While South Korea is better than most Asian countries in being a nation of laws, there is an understandable cynicism about the law held my most Koreans. The big fish have a way of getting undeserved leniency while the more common Korean can expect a greater brunt of the law if convicted. This is another example of what I’ve been recently labeling as the “Two-Tier Korea” consisting of the

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Alternative Legal Fee Arrangements at Korean-based Law Firms: Limited Scope Representation

Many Korean law firms have been willing to work in relationships based on a non-time charge flat-fee or contingency basis for Korean clients.  However, many of these law firms in Seoul have been unwilling to work on alternative fee arrangements with non-Korean clients, because of, among other things, the requirement to represent the client in a far different manner than that of a Korean client and, also, reduced competition in the foreign-client market, because of the reality that only a few attorneys in Korea are capable of handling the needs of international clients in Korea. Korean and foreign clients, often, have different expectations of the role of attorneys.  A Korean client is, often, willing to be a passive participant, since the client knows the attorney is motivated, primarily, through a significant contingency fee.  Contingency fees are common in Korea in all matters, including criminal and family matters.  Thus, clients often

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Prostitution at the Korean Constitutional Court

The petition of a 41-year-old alleged prostitute to forward a case on the constitutionality of punishing a prostitute for exchanging sexual favors for money has been accepted by a judge at the Seoul Northern District Court. The Korea Times has reported, in part, that: She was accused of having sex with a man in his 20s at a brothel in Seoul in July. The district court clarified that the judge’s request doesn’t question the part of the law that punishes buyers of sex.“We don’t punish a woman acting as a concubine or a wife for hire,” Oh said. “In this regard, the law could violate people’s basic rights.”Oh also questioned the effectiveness of the law, saying authorities should focus on punishing brothel owners and pimps exploiting prostitutes.Under the law, both buyers and sellers of sex face one year in prison or a 3 million won ($2,830) fine, except for those

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Senior Prosecutor Arrested for Bribery in Korea

Kim Kwang-joon, according to local Korean vernaculars, was arrested on Monday for receiving bribes. The prosecutor is suspected of receiving close to USD 1,000,000 in bribes relating to a pyramid scheme and influence peddling for Eugene Group (Korean conglomerate). This type of case occurs throughout the world, but in Korea the punishment, rarely, fits the crime. Korea must realize that the most serious crimes to the nation are crimes concerning government corruption. These crimes go to the very fabric of the Korean system of government, a system that is increasingly not trusted by the population. Many of the young in society believe that the country is ruled (maybe rightfully) by a handful in society – this handful is believed to be above the law. When this risk from the youth is realized, the punishment will increase and more in the population will fear the wrath of law enforcement. To date,

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10 Top Cities in Asia for FDI in 2012- One Korean City on the List

The Financial Times, yearly,  posts on its Financial Intelligence site a ranking of the top 10 destinations in Asia for Foreign Direct Investment.  One Korean city appears on the list, three Chinese cities and four Australian cities along with the usual characters.   1.   Singapore2.   Melbourne3.   Hong Kong4.   Brisbane5.   Sydney6.   Busan7.   Auckland8.   Perth9.   Guangzhou10. Chengdu ________Sean Hayes may be contacted at: [email protected] Sean Hayes is co-chair of the Korea Practice Team for an international law firm. He is the only non-Korean to have worked as an attorney 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. (c) Sean Hayes – SJ IPG. All Rights reserved.  Do not duplicate any content on this blog without the express written permission of the author. [email protected]

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Finally All Criminal Cases to Be Disclosed to Public in Korea

The Korea Times has reported that all court rulings in criminal cases, starting next year, will be disclosed to the pubic in writing.  Civil cases will, all, be reported starting in 2015.  The Korea Times notes that: All courts here, including the appellate and highest courts, will be obliged to provide access for citizens to the texts of their rulings in all criminal cases via online or offline, the top court said, noting the system will be expanded to civil cases from 2015. So far, the Supreme Court makes public the verdicts of “major cases” online on a case-by-case basis, and those who want to have details of a case need to make a separate request, causing inconvenience to the public and controversy over rulings’ transparency and the public rights to know. The highest court said it will devise relevant rules within the year for the official launch of the

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Constitutional Court of Korea Declares Internet Real-Name Online Identification System Unconstitutional

The Korean Constitutional Court, unanimously, declared Clause 5 of Article 44 of the Act on the Promotion of Information and Communication Network Utilization and Protection implemented in 2007 unconstitutional in late August of this year.  This Korean law was passed in reaction to suicides of Korean celebrities.  These celebrities were criticized online for various improprieties and alleged improprieties.  The law required, on certain websites, the logging into the website with one’s national identification number, thus, limiting the ability to speak anonymously. Numerous Constitutional Law scholars and free speech advocates emphatically argued that the law was nothing more than an attempt to stifle political speech.  Since, naturally, posters would fear the wrath of the government if criticism was levied against the government or heads of Korean corporations. The Constitutional Court, in striking down the law, noted that: “Restriction on freedom of expression can be justified only when it is clear that

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CEO/Chairman of Chaebols Serving Time in Jail in Korea?

Things may be changing in Korea.  The Chairman of Hanwha Group was sentenced by the Seoul Western District Court, today, to a KRW 4 billion fine and four years in jail for misappropriating/embezzling Hanwha Group funds.  Hanwha’s Chairman Seung-youn Kim, a few years back, was convicted of beating a young man with a pipe and threatening the life of other individuals.  The Korean Court System sentenced Kim to no time in jail for that offense and the president, eventually, pardoned Kim with a number of other presidents and chairmen of Korean conglomerates.   Is this a sign that things are changing in Korea?  Will the Seoul High Court uphold the judgment?  Will the President pardon Kim? As we know, many chairman and presidents of companies have been convicted of embezzling company money and have received no time in jail.  It will be interesting to see if this judgement will be

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There Goes the Neighborhood: Samsung “Union” Allowed to Protest in Front Of Samsung Headquarters

The Korea Times has reported that the Administrative Court in Seoul has overturned the decision of the Seoul Metropolitan Police Force to disallow a rally in front of Samsung headquarters.  The rally was to honor the memory of a Samsung Electronics employee who died of leukemia.  Samsung has been accused of using chemicals in their manufacturing processes that are harmful to the health of workers.  Some have claimed that these specific chemicals are not being used in other developed nations. Samsung and other large conglomerates are beginning to be treated equally by the government to other companies because of, inter alia, the realization that Samsung and other companies have abused their position to the detriment of the population.  Additionally, politicians are increasingly realizing that Korea future growth will likely come from SMEs and not large family-controlled conglomerates.  The Korea Times quoting Yonhap news reported that: The Seoul Administrative Court accepted

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