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When Your Operations Run Afoul of Law
By Tom Coyner
Korea Times
May 29, 2006
This is not a pleasant topic, but multinational firms and/or their
employees occasionally trip over the law. 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 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
corners, many businesses would be at a significant economic disadvantage if
their managers adhered to the letter of the law.
To make things interesting, occasionally the authorities crack down on
transgressors of a certain regulation or law by suddenly arresting, without
warning, an individual as an example to the community. Too often the defense is simply, “Everyone else was
doing the same!” -- which may be true, but
doesn't get you off legally.
Should you find one of your employees in legal jeopardy, and your company
is willing to come to the rescue, you may wish to consider the following.
The Korean prosecutor, to a surprising degree, acts also as judge and jury
(Korea does
have judges, on the civil law model, but not juries). The Korean legal
system offers a great deal of latitude to its prosecutors. Should a case
formally make its way to court, there is at least a 95% probability that
the prosecution will prevail.
However, the prosecution drops many cases prior to trial. The reason for
this is that many prosecutors are more concerned about social justice than
the mechanical aspects of the law. It is the duty and responsibility of the
prosecutor to consider all mitigating factors. Also of huge importance is
the defendant’s attitude in cooperating with the investigation and,
if truly guilty, the degree of expressed remorse and contrition. If the
prosecutor believes the first-time offender has learned a life lesson,
there is a good chance the case will be dropped if
the crime is not a major one.
If the detained person is a foreigner, you should immediately contact that
person’s embassy. Normally the police will contact the appropriate
embassy as well. However, it may be critical for you to develop a rapport
with the responsible embassy official to ensure that the detained
foreigner’s legal rights are respected.
Also, you may get some helpful advice from the embassy official, based on
his or her prior experience in dealing with similar matters. In any case you will want to contact an attorney with relevant
experience. Many of the large firms have extensive white-collar crime
practices and can help, particularly at the early stage.
Given all of this, any outside assistance must be
rendered quickly. Time is of the essence. The longer cases gestate
within the legal system, the larger the number of prosecution officials who
become involved, adding to the complexity.
Furthermore, one should keep in mind that the investigator can hold a
suspect up to 48 hours without showing cause. During this time, the suspect
is simply detained. At a brief court hearing
within that period, the prosecution must make its case for formal arrest
and the court normally rules within a few hours. Most of
the time this step is a formality since, if the matter goes before a judge,
it is extremely likely the prosecution will prevail. Therefore, it
is in everyone’s best interests to try to persuade the prosecution to
exercise maximum leniency during the first 48 hours. A common error is to
spend too much time shopping around for legal counsel instead of taking
preemptive action during this critical time.
If the suspect is formally arrested and placed in jail,
it is not too late for a pre-trial acquittal -- but it does becomes a bit
more complicated since the case has sunk down a layer deeper into the legal
system. A prosecutor may still reduce or even drop all charges, but now he
or she must have a stronger argument to do so. Prosecutors are held responsible for their decisions to defer or to
prosecute their cases.
There are several ways to appeal to a prosecutor. First, there are
face-to-face meetings. Most prosecutors are very approachable, and many
regard themselves as part social worker, responsible for improving society.
If they honestly believe full prosecution would render a greater injustice,
they will often back off.
Another route is to hire an attorney who was once a prosecutor and who is well regarded by his or her former colleagues. At the
same time, a word of encouragement for leniency from someone else in
government can have surprisingly positive results. So it can be critical to
solicit help from parties not directly related to the case.
In short, if one chooses to act, do so quickly and creatively. It is
important to reach the prosecutor and/or investigator as soon as possible.
At the same time, check among your network of Korean allies to discover who
knows whom in the legal system. You are likely to be surprised at who may
be of special value in a time of such difficulty.
Korea has a
rapidly maturing legal system, but its cultural foundation
still retains more concern for overall social justice than for
strict adherence to the letter of the law. And as in many other aspects of
Korean society, personal relations often have a major impact on the
outcome.
The system works well when the foreign manager quickly puts many western
notions of legal strategy aside. So, if there is ever a time to “go
native,” it is certainly when one has to deal with Korean legal
jeopardy.
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