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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Korea’s Supreme Court Ruled Drug Test Unreliable if Evidence of Guilt in a Criminal Trial in Korea is Based Solely on the Test

The Kyungyang Daily has reported on an interesting development in Korea criminal law that may lead to issues for the prosecution in obtaining convictions based, primarily, on testing hair for the presence of drugs.  Hair tests are widely used in Korea and have been considered by the Korean police and prosecution as one of the most useful tools for determining if a suspect is a drug user.  Often, no other evidence is presented as evidence of guilt. The police, in the the not so distant past, would request the testing of the hair of multiple people at clubs that were known for the distribution of drugs.  “The Supreme Court has ruled that estimating the length of time since a person used an illegal drug from the length of the person’s hair is baseless. Affirming a trial court decision, on the 21st the Court affirmed the dismissal of the indictment of

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Proud to Have Been a Member of Korean Court System: Korea Legal System is Changing for the Better

As many of IPG’s Blog readers know, I formerly worked for the Korean Constitutional Court for over six years.  I believe, to date, I am still the only non-Korean attorney to have been a regular employee of the Korean court system.  This opportunity led me to gain great insight into the operation of the court and build friendships with judges, prosecutors, government officials and government attorneys.  These friends are some of the best friendships I have had in my life. Some of my interactions lead me, sometimes, to have a negative impression of many aspects of the Korean legal system. As many readers know, I am quite critical when criticism is needed.   However, I believe my criticisms are, always, fair and not the rants of the typical “disgruntled foreigner in Korea.”   I love Korea and love working in Korea.  However, many aspects of the Korean Legal System are far

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IPG Quoted by Stars & Stripes on US-Korea SOFA and Crimes by GIs in Korea

Sean Hayes (NY attorneys-at-law) the Chair of the Korea Practice Team was interviewed and quoted by Stars & Stripes. “However, a New York attorney working in Seoul said the fact that Flippin was an American played a crucial role in his receiving what is an “exceptional” sentence in South Korea. “It’s kind of a political statement, and I think the judge probably was influenced (by politics),” said Sean Hayes, who represents mostly non-Koreans. Foreigners typically receive longer sentences than South Koreans for violent crimes, he said, and the Flippin case was seen as especially outrageous because of the woman’s age, the fact that the attack lasted for several hours, and because she sustained injuries not seen in a typical rape. But there were other factors at play, such as South Korea’s “fervor over sex crimes,” he said. The South Korean press followed the case closely, and, especially with national elections approaching

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Protecting the Right to Free Speech? MBC’s PD Notebook on Trial

An interesting case has worked its way through the courts on free speech in Korea.  As we all have become aware, not one human case of mad cow disease has been linked to the consumption of U.S. beef.  With the Lee Myung-Bak Administration reassurance that Mad Cow disease would not affect citizens, the Administration decided in 2008 to resume the import of U.S. beef with strict restrictions. MBC’s “PD Notebook” emphatically asserted that U.S. beef poses a risk to the Korean population.  The argument was backed up by numerous mistranslations of U.S. data and information that was later found to be false or misleading by other news sources, the prosecution, and the courts. The program was credited for fueling a 2 million-person demonstration in the capital. The march, on many occasions, turned violent. Many demonstrators were schoolchildren brought to the demonstration by their teachers, college students that were organized by professors and even

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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

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Check Kiting Scam Hits Korea (Beware)

I was contacted by an attorney needing assistance in placing a block, via injunction, on a Korean bank account. The attorney was the victim of a check kiting scam targeting attorney trust accounts. A number of these scams have been running through Missouri.  My firm’s case involves an attorney’s trust account, in which a “client” claiming to be from Malaysia contacted the attorney and asked for assistance in having insurance funds transferred from a North American insurance company to a foreign bank. The fraudster claimed he was injured in an auto accident involving a Missouri-based trucking company. The trucking company paid the settlement, but the fraudster needs the assistance of an attorney to have the funds transferred overseas, since the insurance company is unable or unwilling to forward payments out of North America. The fraudster sent a copy of his Malaysian passport, utilized the name of a real Missouri trucking company, a real

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Misunderstanding of Suspension of Sentence

There are many misconceptions concerning suspension of the execution of sentences in Korea. Today, Brendan Carr, an American attorney working for a medium-sized law firm, noted on his blog that in the first jury trial case a 4-year sentence was suspended. It is impossible to suspend a 4-year sentence. Criminal ActArticle 62 (Requisites for Suspension of Execution of Sentence) (1) In cases where a sentence of imprisonment or imprisonment without prison labor for not more than three years is to be imposed and there are extenuating circumstances taking account of the provision of Article 51, the execution of the sentence may be suspended for a period of not less than one year but not more than five years . . . For example, if a mandatory minimum sentence is 10 years and the judge uses his discretionary mitigation (1/2 of min. sentence), then the sentence is 5 years and the

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First Jury Trial in Korea Defendant Found Guilty

In the first jury trial in Korea the defendant was found guilty. The defendant a 27-year old man admitted to battery and robbery of a 70-year old woman in her home, but claimed that he did so because his younger sister needed money in order to pay debt collectors that were threatening the life of his sister. A month, prior to the trial, The Daegu District Court, notified 230 citizens of the district that they were called for jury duty. Surprisingly, 86 jurors showed up for jury duty and the prosecutor and the defense attorney selected, amongst the 86, 9 jurors and 3 alternates. Six men and six women were chosen. During the trial, the prosecution attempted to persuade the court and jury that they must apply the law and not consider the plight of the defendant and his family. The defense attorney urged the court and jury to be

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New Public Defender System Successful

The Law Times, a Korean language law newspaper, reported that the new public defender system, initiated a few years back, has received positive reviews by defendants and judges. The court system recruited attorneys, throughout Korea, with at least 2 years experience in criminal matters. Many of the attorneys had numerous years of experience and have been noted for zealously advocating for defendants. A criminal judge at the Seoul Central District Court noted, “High-quality trials are possible now, since the public defenders eagerly argue whatever could be beneficial to the accused in every case.” Shim Hoon-Jong, a 72 year-old public defender stated that: “Working as a public defender is so valuable. At first I started this work with a thought that I will just volunteer, but now I feel so happy and satisfied.” Mr. Shim received a letter from a convict sentenced to death. The death row inmate who was accused

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Criminal Punishment of Corporation for Acts of Employees

According to the Law Times, a Korean legal vernacular, laws which punish corporations or presidents of corporations, regardless of their “intent” or “negligence,” when a corporation’s manager commits a crime may be amended in the near future. President-Elect Lee intends to abolish most of these criminal laws and allow sanctions to be handled through administrative procedures. The Ministry of Justice and some progressive NGOs may oppose the amendments. However, some noted academics and lawyers have already shown their support for the amendments. Kang Dong-Bum, a professor at Ewha University, said that “Calling corporations and presidents to criminal account only because of the acts of an employer is wrong and they should be called to criminal account only when they have intention or negligence” Kang also noted, however, tha fines allowed to be imposed through administrative actions should be drastically increased. Expect amendments to be enacted in the later part of

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Abortion in Korea

Appeared in the Korea Times11/30/2007 by Sean Hayes  (host of this blog)www.ipglegal.com Dear Sean, ― my Korean girlfriend is pregnant and we would like to abort the fetus. I was told abortion is illegal in Korea? What can we do? Full of Anxiety, in Gangnam Dear Anxiety, Chapter XXVII of the Criminal Code prohibits procuring and administering abortions. However, in 1973, the Maternal and Child Health and the Mother and Fatherless Child Health Acts established exemptions from this prohibition. According to the laws, a physician may perform an abortion if the pregnant woman or her spouse suffers from an eugenic or hereditary mental or physical disease specified by Presidential Decree, if the woman or her spouse suffers from a communicable disease specified by Presidential Decree, if the pregnancy results from rape or incest or if continuation of the pregnancy is likely to jeopardize the mothers health. Even though the Korean

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Kwangju Mayor’s Case Not Planned

Kwangju Mayor’s Case Not Planned Korea Times 11-14-2005 by Sean Hayes Dear Attorney Hayes: Why did a San Francisco Airport search for over an hour a mayor of a major Korean city? Is this just the U.S. trying to punish Koreans for not permissively following America? If the mayor is treated like this how will an average citizen be treated? From Worried and Angry in Yosu. Dear Worried: According to Kwangju Mayor Park Gwang-tae, on Wednesday morning, the mayor and 18 members of his entourage were delayed in a San Francisco Airport for over an hour and a half. All members’ bags and personnel belongings were thoroughly searched. The group was visiting the U.S. to pitch investment opportunities in the Kwangju area. The mayor, after and during the screening process, was furious and called for the U.S. to withdraw patriot missiles from the Kwangju area, for the U.S. government to

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Foreigners’ Drug Use in Korea

Foreigners’ Drug Use Appeared in Korea Times on September 7, 2007. Dear Professor Sean Hayes: I have been charged with the consumption and possession of drugs. I am being held at a detention center south of Seoul. I was arrested in Itaewon and tested positive for THC (marijuana). My home was searched and they found marijuana in my house. What can I do? I don’t want to serve time in jail. Nervously awaiting my fate (summation of a phone call). Dear Nervous: A major Korean TV network did a comprehensive story on the criminal behavior of English teachers in Korea. In the story, one Canadian teacher contended that two out of every 10 English teachers use drugs and many teachers use fake diplomas. Obviously, the teacher overstated the problem. If these new stories spread, I suspect an increasing number of arrests and prosecutions. Do not do drugs in Korea. Leave

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Ex-police chief arrested for alleged cover-up of revenge

Ex-police chief arrested for alleged cover-up of revenge A Seoul court issued an arrest warrant late Thursday for a former Seoul police station chief accused of trying to cover up an alleged assault involving a local tycoon, according to Yonhap News Agency. Jang Hee-gon, the former head of the Namdaemun Police Station in downtown Seoul, is suspected of abusing power and neglecting duty by ordering subordinates to stop an investigation into the case involving Kim Seung-youn, chairman of Hanwha Group. Jang effectively held up the case for more than a month until it attracted wide media attention in late April. [email protected]

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Middle school girl gang-raped by classmates: police

Hankyoreh March, 30, 2007 Middle school girl gang-raped by classmates: police Assault underscores need for sex education overhaul, experts say A group of South Korean male middle school students were arrested for allegedly having repeatedly gang-raped a female classmate on school grounds, sending shockwaves across the nation. Regarding the alleged attacks, experts say that teenagers are exposed to pornograghic films and images without receiving proper sex education, and thus do not show sensitivity toward sexual violence. Police said that the sexual assaults began in February, when six male middle school students, all 14, in Gapyeong, Gyeonggi Province allegedly coaxed one of their female classmates, also 14, to a corner of their school playground and raped her. After the initial assault, the boys allegedly blackmailed the victim, saying that they would tell their classmates what they did if she did not obey them. They later allegedly raped her again in an

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