A brief look at sentencing factors in South Korean courts

April 18th, 2014 · Accidents, Crimes and Scandals, Legal news · 0 comments

Original article in Korean is at this link.

[Anchor]

A case in which a stepdaughter was abused and beaten to death is the second such case recently.

Yet the difference in the prison sentences in the two cases is a full five years.

The reason?

Our reporter Jang Dong-woo went looking for answers.

[Reporter]

Courts in Ulsan and Chilgok that recently considered defendants accused of beating their stepdaughters to death handed down sentences of 15 and 10 years.

Both defendants were accused of homicide resulting from bodily injury.

The charge of homicide resulting from bodily injury carries a sentence ranging from three to five years, but if the crime is committed against a family member the maximum increases to seven years and if committed against a family member a second time then the maximum increases by half and can reach 10 years and six months.

Factor weighing in favor of a heavy punishment are if the crime is committed more than once, if the victim is a family member or ancestor, or if the crime is particularly heinous.

The Daegu District Court that handled the case of the stepmother in Chilgok found that the standard for the maximum sentence was met, and the Ulsan District Court found that the standard was greatly exceeded.

In the case of the Ulsan stepmother, the sentence was enhanced because the death of the child, just two hours after the assault, was quite cruel and she had three prior arrests for injurious assault.

In the Chilgok case the indictment was for a violation of the Child Welfar Law, not for assault, so sentence enhancments did not apply.

< Lee Jong-gil / Daegu District Court Judge> “Under the sentencing guidelines, the sentence in this case of homicide by bodily injury could range from four year to 10 years and six months and in this case, I believe a sentence of 10 years was appropriate.”

However, legal experts say that had the Chilgok case been brought for assault, which would have made it eligible for sentence enhancement, it would have been eligible for sentence enhancement the same as the Ulsan case.

 This is Jang Dong-woo for News Y.

For more on the Ulsan case, see this article in Korean (warning: disturbing X-ray photo at top of page).

Bankruptcy process opposed for local agencies

February 16th, 2014 · Economy and Worklife, Legal news · 0 comments

Original article in Korean is at this link.

The Gyeonggi-do provincial government is opposed to the introduction of a bankruptcy process for local public entities (지방자치단체).

The province annouonced that, “a system of bankruptcy for local public entities would give the central government considerable power over local finances, violating fiscal autonomy and destroying the foundation for local entities, so it is unacceptable.”

The province argued that there should be first discussions over reforms to the current 8-to-2 ratio of national and local taxes. It suggested the 6-to-4 ratio found in advanced countries such as the United States and Japan.

The province also expressed the opinon that the introduction of a bankrupcty system is inappropriate considering the current situation in which the government is placing additional burdens on provinces to pay for social services, worsening the state of local finances.

This year Gyeonggi-do’s expected budget for social services is 5.5267 trillion won, 34.5% of its total budget of 15.9906 trillion won.

A member of the Gyeonggi-do Office of Planning and Coordination said that “the government has already begun instituting its pre-warning system for local entities’ finances, so it’s difficult to see any need for this additional bankruptcy system… what is needed is pre-emptive financial management that enlarges local finances.”

Today the Ministry of Security and Public Administration reported to President Park Geun-hye its 2014 Business Promotion Plan (2014년 업무추진계획), which contains the substance of the bankruptcy system for local public entities.

MSPA head Yu Jeong-bok said that “a bankruptcy system for local public entities is not intended to implement restrictions of last resort when an elected official commits financial mismanagment rather than shift the responsibility for a bankruptcy onto the citizens… this will lead to a return to sound financial management.”

The bankruptcy system for local public entities is intended to have the government or high-grade agencies intervene to promote the financial recovery of local public entities which have defaulted on loans or committed other acts that make it difficult to recover financially.

It is different from the bankruptcy system for businesses, which involves the dispersal or liquidation of legal persons. It is similar to the work-out system in which a business that still has value is saved through a restructuring.

Law allows Korean employers to avoid holiday pay

February 12th, 2014 · Economy and Worklife, Legal news · 0 comments

Original article in Korean is at this link.

<Anchor comment>

The number of “red days,” public holidays on which there is no work, total 67 this year.

You may think that you would receive extra holiday pay if you go into work on a holiday, but there many times that is not true.

On Seollal, Chuseok, and other holidays as well as national holidays and Christmas, you might not receive holiday pay even if you work.

This is because of the holiday clauses in the Labor Standards Act (근로기준법상).

Ha Song-yeon reports.

<Reporter>

Ms. Mo, who has worked in a supermarket for over ten years, worked for three days over the most recent Seollal holiday.

She worked from ten in the morning to ten at night but was not given holiday pay.

<Tape recording> Supermarket employee (voice disguised): “I never like going in on a holiday. I want to spend time with my family… I feel like exploited which is making me depressed. That’s why I’m speaking so frankly.”

The Labor Standards Act specifies that workers are to be paid 1.5 times their regular pay, or receive extra holiday time, for working on what would otherwise be a paid holidays.

However, current law specifies that only one day a week, in addition to the May 1st Labor Day, are to be considered paid holidays.

Public holidays on which many citizens work are “official holidays,” that is, days when citizens don’t have to work because public servants don’t.

Whether an off day is to to be treated as a paid holiday is determined by a collective bargaining agreement.

That means that at 20% of businesses with at least 100 employees and the majority of small and medium enterprises do not give holiday pay because they have no such agreement.

The result is that not a few companies include compulsory annual vacation days with official holidays.

<Interview> Shin In-su (Attorney): “There is an urgent need for the Labor Standards Act to be reformed so that ordinary workers’ vacation time is treated the same as those in government service when it comes to legal holidays.”

 The government has so far declined to play the role of labor negotiator, so the complaints from workers in small businesses are only increasing.

This is Ha Song-yeon for KBS News.

In Korea, sexual assault victims receive attorney consultations

January 4th, 2014 · Legal news, Women in Korea · 0 comments

Original article in Korean is at this link..

<Anchor Comment>

Sexual assault victims frequently feel re-victimized during the investigation and trial processes and defenseless against threats from their attackers.

Now, a group of attorneys who specialize in supporting sexual assault victims so that they do not feel re-victimized are being praised for joining together.

Yun Jin reports.

<Reporter>

Children who have been sexually assaulted may exhibit anxiety, excessive shyness, and violent behavior.

They may be further victimized during the investigation and trial processes, in addition to the need for proper medical treatment.

Attorney Kim Jong-woong is now a state-approved attorney specializing in such sexual assault victims.

The goal is provide aid to victims who cannot stand up for their own rights since they do not know the law.

<Interview> Kim Jong-woong (state-appointed attorney specializing in sexual assault victims): “If a case similar to ours comes up then in the investigative process, for there to be an investigation out of the way of prying eyes, this is the simplest thing but helpful.”

The specialist attorneys provide free legal counsel to victims throughout the process from the crime to the verdict.

Since the appointment of 11 attorneys last year, in just six months over 1,000 victims have made use of the service and the number continues to increase, and the Ministry of Justice appointed an additional four attorneys this year.

<Interview> Shin Jin-hui (state-appointed attorney for victims): “I think of us as similar to public defenders who provide clear information regarding punishment under the law, and from the beginning provide correct information regarding your rights.”

Beginning this year there will be further programs for supporting sexual assault victims, including a “statement support system” for helping children and disabled sexual assault victims to provide statements to investigative agencies and courts.

Law school student hacked professor’s computer

December 24th, 2013 · Accidents, Crimes and Scandals, Education and ESL, Legal news · 0 comments

There are many ways to get ahead in law school. Hacking a professor’s computer to get the tests isn’t one of them. Original article in Korean is at this link.

A 24-year old first-year law student at Yonsei Law School was permanently expelled after being referred to a disciplinary committee for being caught hacking a professor’s research room computer in order to steal a test.

On the 23rd the Law School announced that the committee, composed of seven people including Dean Shin Hyeon-yun, convened at 1:00 PM that afternoon and decided the above punishment for the student, known as “A”.

The permanent expulsion is the harshest available punishment, which could have been a warning, placement on academic probation, or suspension. Accordingly, “A’s” school record will be erased and he will be barred from re-admission.

In addition to “A” receiving an F in every course in the previous semester, his merit-based scholarship this semester was revoked and his certificate of merit nullified.

“A” wrote in a statement to the disciplinary commitee that on the night of the 10th he entered the professor’s room and installed a hacking program, amd had done so several times in the previous semester.

The law school had discovered the installation of the hacking programs on the processor’s PC following a joint investigation with its IT department.

The disciplinary committee issued the highest possible punishment with the approval of the dean following a two-week period to consider “A’s” punishment.

The law school said that the possibility of pursuing criminal charges is being discussed with the school’s professors.

Dean Shin Hyeon-yun said that “after confirming the truth, this punishment was issued with all proper procedures… in the future, our school will be strictly applying a policy of zero tolerance to even the most minor infractions.”

On the 16th at the law school student community website Lawinus (로이너스), there were numerous posts discussing the rumors that “A” had been caught entering the research room to install a remote-control hacking program in order to steal the test questions for the semester’s final exam.

“A”, who graduated as the salutatorian from Seoul National University with a degree in management, had a perfect 4.3 GPA in the previous semester.

As soon as the truth came to light and there were rumors inside and outside of the school regarding whether the same method had been used on other exams in the past, the school referred “A” to the disciplinary committee immediately.

South Korea reforms sex crimes laws

July 4th, 2013 · Legal news · 1 comment

Original article in Korean is at this link.

Beginning now, those who commit sex crimes will be punished even if there is no report from the victim and even if they reach an agreement with the victim.

The number of sex crimes to which statutes of limitations do not apply is increasing. Those who commit forcible molestation, rape, or murder of children and teenagers up to 13 years old may be pursued and punished to the end, without regard to the passage of time after the crime.

The Ministry of Justice and the Ministry of Gender Equality and Family announced on the 17th that beginning on the 19th, over 150 changes and reforms will be made to six statutes related to sex offenses as described above. The core of the reforms is changes related to sex offenders, improved post-release monitoring, and better protection of victims.

The laws at issue are the Criminal Code, the Special Law on the Punishment of Crimes of Sexual Violence, the Act on the Protection of Children and Juveniles from Sexual Violence, the Prevention of Sexual Violence and Victim Protection Act, the Electronic Anklet Law, and the Sexual Impulse Medication Treatment Act.

Over 60 years after the enactment of the Criminal Code in September 1953, its provision making sex offenses prosecutable only subject to complaint (친고죄) will be struck.

The two types of crimes are those which are subject to complaint, meaning that there are pre-conditions before an indictment can be pursued, and those which are not. Crimes subject to complaint must be reported by a victim or complainant, while crimes not subject to complaint may be prosecuted regardless of the victim’s opposition.

Now, every provision of the Special Law classifying a sex crime, such as rape, forcible molestation, molestation in public, and lewd acts using communications media, as either subject or not subject to complaint will be eliminated.

There will also be reforms to provisions allowing prison sentences to be reduced if the offender was intoxicated by drugs or alcohol. The majority of sexually violent crimes will now be punished without reference to such provisions.

Punishments will be stiffened for so-called “lolita” pornography of children and adolescents.

Life sentences will be possible for the rape of children and adolescents and for producing, distributing, or exporting pornography of children or adolescents, and punishments will be increased for buying sex from children or adolescents.

The crime of constructive rape will be established, consisting of placing one’s sex organs into a body cavity such as the mouth or anus, or placing a body part such as one’s fingers, or a tool, into the anus.

Also, the word “woman” will be replaced by “person” in the crime of rape, making it possible to punish the rape of a man.

There will be a new crime of “entering a public place with sexual intention”, such as entering a public restroom or sauna, or refusing to leave, in order to satisfy a sexual urge.

Also, all victims of sex crimes will be able to receive support from public defender attorneys, and victims who have difficulty expressing themselves, namely the disabled and those 13 or under, will receive aid when testifying.

Sex offender management programs will be strengthened to prevent recidivism.

Supreme Court settles lawsuit stemming from 2008 US beef protests

May 9th, 2013 · Legal news, Politics · 0 comments

Original article in Korean is at this link.

The Supreme Court has ruled that the government must pay compensation to women who were forced to remove their underwear in a jail after being detained during a candlelight vigil in 2008.

The second division of the Supreme Court (under Justice Lee Sang-hun) affirmed the ruling of the trial court, which had heard the lawsuit against the government brought by four women, including a Ms. Kim, ruling that “the government must pay 1.5 million each to Ms. Kim and the others”.

Ms. Kim and the others had attended a candlelight vigil protest against the importation of American beef in August of 2008 when police detained them on suspicion of violation the Law on Assembly and Demonstration (집회및시위에관한법률), and ordered them to remove their brassieres during a body search, and they later brought suit asking for 60 million won in compensation and asserting that “this was a violation of our personal rights.”

Both the trial and appeals courts had found that this was an illegal act that caused them compensable mental suffering, writing that “body searches in prison may be carried only in limited circumstances to prevent suicide and must be conducted so as not to wrongfully infringe on fundamental rights such as honor and dignity… in all other cases it is illegal if not related to a possibility of suicide or the consent of the inmates.”

Law school growing more expensive in Korea

April 25th, 2013 · Education and ESL, Legal news · 0 comments

Original article in Korean is at this link.

In October of 2011, Mr. K (then 31 years old) died after jumping from the 15th floor of an apartment building in the Sanggye-dong neighborhood of Seoul. Mr. K, who had been a student at a law school in a province, appeared to have taken his own life while struggling with unmanageably high tuition bills. Mr. K had entered in law school in March after preparing for over 10 years for the bar exam with the support of his parents. Mr. K received a full scholarship in the first semester but his grades fell in the second semester and he had to pay five million won in tuition.

Mr. K’s extreme decision is one too complicated for explanation, but his suicide, partly driven by the high cost of attending law school, has sparked a “money school” debate. Ever since law schools opened their doors in 2009 there has been criticism of them as “money schools.” This is because some graduate schools have increased their tuition fees several times over.

In September Representative Yu Gi-hong of the Democratic United Party released statistics from the Ministry of Science, Education, and Technology showing that as of 2012 the average full-year tuition at a national law school was 10.04 million won, and 20.75 million won at a private law school. At the 25 law schools nationwide, tuition exceeds 20 million per year at six schools when including admissions fees. That means a three-year course of study takes over 60 million won. After adding up the money needed for daily life and the exams and qualifications needed to prepare for law school attendance, a person will need well over 100 million to matriculate at and graduate from a law school. (Yonsei University School of Law announced that “the 26.61 million won includes the one-time 3 million won matriculation fee… if the total tuition is calculated then over three years it is 21 million won.”)

Concerns over the high cost of law schools have persisted since their establishment. Law schools respond to this criticism with “promises” to increase scholarships and raise admissions rates for the economically disadvantaged. Law school accreditation standards specify that “the rate of scholarship support is to be 20%” and “5% of admissions must be to the economically disadvantaged.” A study found that scholarship rates over the three-year law school course are actually above 20%. However, there is increasing criticism that scholarship rates at law schools are not increasing, and are simply adhering to the “minimum standard.”

There is also the perspective that it is not only at law schools where money piles up. Mr. L, a student attending a law school in Seoul, said that “when I was preparing for the bar exam at the goshichon in Sillim-dong the fees were very high. From the lecture fees to daily life costs it’s an extremely expensive business, and so I couldn’t even count what I was spending.”

50th Law Day to be celebrated in Korea

April 24th, 2013 · Legal news · 0 comments

Original article in Korean is at this link.

On the 25th the Korea Post will release its stamp celebrating the 50th observation of Law Day (법의 날).

With our contry’s Constitution in the background, the statue of Lady Justice which is installed above the central hall of the Supreme Court appears on the 1.2 million stamps which are to be released on the 25th.

Law Day was established in July 1963 following the worldwide advisory of the first Conference on the Law of the World. Our government established May 1st as Law Day beginning in 1964, but since 2003 it has been celebrated on April 25, which is also the day that the fundamental judicial system was established by the Law of the Constitution of the Courts of Justice during the Gabo Reforms, due to concerns over its overlap with Labor Day.

The Korea Post announced that “this year is deeply meaningful as the 50th celebration of Law Day… We are publishing this stamp in order to increase understanding of the law and increase the esteem in which it is held.”

The celebration of the 50th Law Day will be held on the 25th at the Supreme Court, and other celebrations are planned at courts nationwide and at the Supreme Prosecutors’ Office and private law offices.

Foreign attorneys in Korea in hot water over advertising

April 23rd, 2013 · Accidents, Crimes and Scandals, Foreigners, Legal news · 0 comments

Original article in Korean is at this link.

The Seoul Bar Association (chairman Na Seung-cheol) announced on the 19th that on the 16th it complained to the Seoul Central District Prosecutor’s Office that four foreign attorneys had violated the Attorneys-at-Law Act (변호사법) and the Foreign Legal Consultant Act (외국법자문사법) by advertising themselves as “international lawyers.”

The SBA said that “although there is no such qualification as ‘international lawyer,’ using this term could create the misunderstanding that the person is a licensed attorney in every country in the world… Article 113 of the Attorneys-at-Law Act specifies that advertising using the expression ‘international lawyer’ is punishable by up to one year in prison or a fine of up to ten million won.”

The SBA added that “it is criminally punishable to advertise oneself as an ‘international lawyer’ when one is not a registered as a foreign legal consultant… Since February we have asked them to cease the use of the phrase ‘international lawyer’ when introducing themselves in the media as foreign attorneys, and began seeking legal enforcement this month only after allowing a one-month period of time for correction.”