Legal Problems Encountered by American Citizens in Korea
Consular officers are not lawyers, and are not permitted to give legal advice. We suggest that a competent attorney be consulted when legal problems arise. We offer this web page as an overview of local law, as well as a source of information on common problems and concerns.
U.S. military personnel and dependents covered by the Status of Forces Agreement (SOFA) should refer to their military legal assistance offices for information.
U.S.-Korean Law Differences / Traffic Laws / Visa Status / Arrests /
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The July 12, 1948 Constitution of the Republic of Korea, as amended and promulgated October 29, 1987, states in Chapter II, Article 12 that:
All citizens shall enjoy personal liberty. No person shall be arrested, detained, seized, searched or interrogated except as provided by law. No person shall be punished, placed under preventive restrictions or subject to involuntary labor except as provided by law and through lawful procedures.
No citizen shall be tortured or be compelled to testify against himself in criminal cases.
Warrants issued by a judge through due process, at the request of a prosecutor, shall be presented in cases of arrest, detention, seizure or search. In a case where a criminal suspect is a apprehended, flagrant delicto, or where there is danger that a person suspected of committing a crime punishable by imprisonment of three years or more may escape or destroy evidence, investigative authorities may request an ex post facto warrant.
Any person who is arrested or detained shall have the right to prompt assistance of counsel. When a criminal defendant is unable to secure counsel on his own, the State shall assign counsel for the defendant as provided by law.
No person shall be arrested or detained without being informed of the reason therefor and of his right to assistance of counsel. The family, etc., as designated by law, of a person arrested or detained shall be notified without delay of the reason for and the time and place of the arrest or detention.
Any person, who is arrested or detained, shall have the right to request the court to review the legality of the arrest or detention.
If a confession is deemed to have been made against a defendant's will due to torture, violence, intimidation, unduly prolonged arrest, deceit, etc., or if a confession is the only evidence against a defendant in a formal trial, such a confession shall not be admitted as evidence of guilt, nor shall a defendant be punished by reason of such a confession.
Reading the above section of the Korean Constitution may lead one to conclude that the Korean and U.S. legal systems are virtually the same. Although this may seem so, there are a number of very significant differences. The main point to remember is that an American in Korea is subject to Korean laws, not American laws. Below are some of the main differences between our respective systems.
Access to Counsel
An American, used to having his or her lawyer present at every step of legal proceedings, may be disconcerted to find that under Korean law an attorney need not be present during questioning of a suspect by the public prosecutor's office. Police and public prosecutors may also question a suspect without an attorney present. However, the suspect may refuse to answer questions during the police and public prosecutors' interrogations. In such cases, the authorities will usually allow counsel to attend. Korean attorneys are currently lobbying for greater access to their clients.
Americans accustomed to their "one phone call" may be taken aback when Korean authorities do not allow them that privilege. Under the Consular Convention, Korean police officials must notify the Embassy as soon as an American is arrested. The Police may make this notification in writing, however, and it might be a few days or more before the Embassy is apprised of an arrest. In practice, if a foreign suspect taken into police custody has relatives or an attorney in Korea, law enforcement is required to and will notify the suspect's family and attorney of the arrest promptly.
Perhaps the most marked difference between our legal systems is the possibility of double jeopardy in Korea. Having been found innocent of a crime is no protection against being tried again for the same offense. If the prosecutor feels the verdict is incorrect, he may appeal that verdict and retry an already-acquitted individual.
Bail is legally possible under Korean statutes. However, bail is frequently not granted and may not be as readily available as in the United States.
Smuggling and Other Customs Violations
Korean customs laws are as strict as, if not stricter than, our own. Violators of these laws are subject to fines up to ten times the normal customs duty, confiscation of the contraband, and jail sentences of up to ten years.
Importing or exporting certain prohibited articles detrimental to national security, public health or public morals (such as classified government information or counterfeit money) is punishable by imprisonment of up to 10 years or a fine of up to 20 million Won. Importing or exporting goods which differ from those reported to customs authorities or failing to report imported or exported goods may result in imprisonment of up to 5 years prison or fine a fine equal to the higher of 10 times the normal duty or the purchase price of the goods.
Purposely misstating the quantity of merchandise to evade payment of duty can result in 3 years prison and fines of 500% of the regular duty or purchase price of goods, whichever is higher. In the past, confiscated merchandise has included gold ingots, jewelry and unset precious stones, as well as bear bladders, deer antlers, and other items used in Oriental medicine. It is also possible that the goods and any vehicle or other articles used to bring the goods into or out of Korea may be confiscated.
Drugs and drug abuse are governed by the Narcotic Substance Control Act of 2000 as well as by the Criminal Act. These laws regulate the import, export, manufacture, preparation, subdivision, sale, intermediate sale or purchase, and purchase of narcotics, as well as possession of narcotics for the purpose of import, export, manufacture, preparation, subdivision, selling or purchase; serving as an intermediary for buying and selling of narcotics. Provisions under these laws mandate minimum prison sentences of one year.
Korean government policy is aimed at discouraging the use of dangerous and habit-forming drugs in the country. Korean statutes classify marijuana as a "dangerous narcotic." Parole is virtually never given in drug-related cases. Recent legislation provides that trafficking or abusing drugs may result in prison for an indefinite term and confiscation of illegal proceeds and the illegal substance.
(This section was provided to us by Lt. Col. David E. Sprowls, and is reprinted with permission of the Judge Advocate General's Office, Yongsan Army Garrison)
American citizens running afoul of Korean traffic statutes may expect serious penalties, possibly including jail time, for hitting pedestrians, driving while intoxicated, and leaving the scene of an accident. When a pedestrian has been injured or killed, the most important principle in Korean society is to provide restitution to the victim and his family.
Korean authorities handle traffic accidents in a significantly different way than authorities in the United States. Under Korean law, many traffic accidents, even minor ones, carry criminal consequences, as well as civil liabilities. Different laws, combined with a different legal system and different culture, can cause anxiety and frustration.
Under Korean law, anyone who drives an automobile is considered a "professional" driver and is held to a very high standard of duty to prevent accidents. The Road Traffic Law provides penalties for violating these standards. These penalties range from a small fine to imprisonment. Anyone who violates any of the rules and causes damage to property of another is subject to a penalty under that law. Anyone who breaches the duty of care and causes the death or injury of another may be charged with "occupational negligence resulting in death or injury" under the ROK Criminal Code.
The Koreans also have a special statute called "Special Law Concerning Disposition of Traffic Accidents" which overrides the Criminal Code in traffic accidents. Under the "Special Law," any driver of an automobile who has committed the offense of occupational negligence resulting in injury, or anyone who has caused property damage to another, cannot be prosecuted if the driver obtains a private settlement from the victim. This law also prohibits prosecution if the driver is insured by a policy that pays all medical expenses regardless of fault or agreement of parties. This "no-prosecution" provision, however, does not apply if the driver does one of the following:
- Causes injury to another and flees the scene without rendering assistance or moves the victim from the scene of the accident and abandons him;
- Ignores a traffic signal or device, or violates the direction of a police officer;
- Crosses the center line, or makes an illegal crossing, U-turn or driving in reverse;
- Exceeds the speed limit by more than 20 kilometers-per-hour;
- Makes an illegal lane change;
- Crosses a railroad crossing in violation of the Road Traffic Law;
- Fails to protect a pedestrian in a crosswalk;
- Operates a motor vehicle without a proper license;
- Operates a vehicle under the influence of alcohol or drugs as prohibited by the Road Traffic Law;
- Crosses over the curb;
- As the operator of a vehicle for hire, fails to protect a passenger from falling off the vehicle in violation of the Road Traffic Law.
Even if one of these aggravating factors leads to criminal prosecution, private settlement is a very important factor in the Korean criminal justice system. If the driver ends up in a Korean court, a private settlement can make the difference between a small fine with a suspended sentence and imprisonment. Accordingly, private settlement is always encouraged. In Korea, such a settlement is not considered bribery or an admission of guilt; rather, it is a means-separate from the criminal case-by which parties settle the civil liability that arises from the traffic accident.
Another frustration for Americans involved in Korean traffic accidents is how the ROK authorities always seem to find the driver at fault. Because the driver is held to very high standards of care, the driver is almost always found at fault to some degree if a pedestrian is injured in a traffic accident.
Consider the example of a pedestrian who carelessly darts in front of a vehicle that is moving well under the speed limit, and is struck because the driver of the vehicle simply did not have sufficient time to react. Unless such an incident occurs in certain limited circumstances or locations, such as on an expressway or restricted highway where absolutely no pedestrian could be expected, or beneath a pedestrian overpass where a pedestrian has attempted to cross a street without using an available overpass, or where a pedestrian crosses against a traffic light, ROK authorities usually will find the driver to be at fault for failing to prevent the accident. In assessing the civil liability, a Korean court may also find the pedestrian to be at fault. Indeed, it may conclude that the pedestrian was more at fault than the driver, and may even deduct the pedestrian's compensation accordingly (except for medical expenses, as no deduction is made against medical expenses). Nevertheless, just because the pedestrian was more at fault than the driver does not mean that the driver is "off the hook;" the driver still may face civil liability and criminal penalties.
In a vehicle-to-vehicle accident, both drivers are held to the same high standards of care. The mere fact that one driver violated a traffic rule and a second driver did not will not automatically exempt the second driver from civil or criminal liability. If the first driver who violated the rule is injured seriously, the second driver still may be found to be at fault for failing to prevent the accident. Again, although the amount of compensation may be reduced, the second driver is expected to compensate the first driver and also may be subject to criminal prosecution. Contrary to the perception of some Americans, this "rule" is applied equally to all drivers, regardless of their nationalities.
American Citizens with valid U.S. passports may enter Korea for a period of 90 days without a visa (arrival day counts as day number one). All foreigners who stay in Korea more than 90 days must obtain residence certificates. Fingerprints are generally required of all foreigners over age 20 who will be here for at least one year.
Americans must keep their visa status current with Korean Immigration. Violators of immigration and entry/exit regulations are subject to fines; i.e., if foreigners overstay their visas they must pay substantial fines. The lowest fine is usually about 100,000 won for an overstay of 30 days or less.
Children born in Korea need to obtain visas and other pertinent documentation, and the birth reported to Korean Immigration within 90 days (30 days if the U.S. citizen child has one parent who is a Korean national and can claim dual citizenship).
Permission is required to engage in any activity (e.g., part-time work) not covered by the original visa or status of entry. Work visas are not granted in Korea; this type of visa must be obtained before entry.
You must obtain extensions of stay before the expiration of the allowed period.
There is an airport tax for all people departing Korea. There are no special exit procedures for tourists who depart the country before the expiration of the initial period of allowed stay. However, reentry permits, residence certificates and other documentation may be required of foreign residents who wish to return here. Complete information on these procedures may be obtained from any Immigration Office of the Korean Ministry of Justice.
A warrant is generally required before an individual can be arrested in Korea. No warrant is required, however, for an individual caught in the act of committing a crime. In addition, no warrant is required where an individual is suspected of committing a serious crime if there is a risk that evidence of the crime may be destroyed or that the individual may try to escape.
An arrested individual has the right to receive immediate assistance from an attorney. Within the limits of the law, the arrested individual may receive visits from a lawyer or other interested person, may have medical treatment, and may receive authorized medication.
In most cases, the Embassy is promptly notified by Korean law enforcement officials of the arrest or detention of any U.S. citizen. American Citizen Services (ACS) makes every effort to make an initial visit to the detainee soon after the arrest, with follow up visits periodically. Arrangements will be made for more frequent visitation as circumstances warrant.
The Role of the Embassy in an Arrest
The U.S. Embassy cannot assist prisoners with legal representation. When a consular officer visits someone who has been arrested, we provide a list of local attorneys who are known to speak English and to have dealt with foreigners’ cases. Our job is to ensure that the arrested U.S. citizen is being treated fairly under local laws, understands the charges, has access to legal counsel, and has any special or emergency needs met to the extent possible. The Embassy can also keep a detainee’s relatives or friends informed of the situation if that is the person’s wish.
Police officers are allowed to stop and question individuals who are suspected of having committed crimes or who are considered likely to commit crimes. However, police officers cannot force such individuals to answer their questions. Public prosecutors and police officers, before listening to statements from suspects, are required to inform them of the fact that they can refuse to give statements. Attorneys must be present at trials but are not allowed to be present during most phases of a criminal investigation.
Any individual who is arrested for anything more than a minor violation is urged to obtain competent legal counsel promptly. The court will appoint an attorney for any accused individual who is a minor, is over 70, is deaf and dumb, is mentally incapacitated, or cannot afford a lawyer. Americans used to a vigorous public defender should know that Korean public defenders are regular attorneys doing pro bono work, and that the defense in such cases can be pro forma.
Individuals can be detained by the police for up to 10 days before formal charges are filed. At the end of this period, police must move the case to the prosecutor's office. A public prosecutor then has ten days after in which to determine whether or not to indict the individual; however, the public prosecutor may make a request to the court for an additional 10 day extension. These requests are normally granted by the courts. There is no formal arraignment procedure in the Korean legal system.
Apart from detention in jail, Americans may be forbidden to leave the country if legal actions are still pending. Such individuals may be held in Immigration Detention or may merely be subject to an exit ban.
There are six kinds of courts in Korea: The Supreme Court, High Court, District Court, Family Court, Patent Court and Administrative Court. Trials are conducted at the District Court level. Courts are required to complete a case within six months of receipt from the public prosecutor's office. Although there are legal provisions for bail, in practice it is virtually never granted.
Cases punishable by capital punishment, life imprisonment or sentence of one-year imprisonment or more are tried by the three-judge court. Other cases are tried by the single-judge court.
After the case is referred to the court, the prosecutor, as the representative of the government, introduces evidence to the court, questions the defendant, examines the witness, and performs other duties.
In the closing statement, the prosecutor suggests the suitable form and length or amount of punishment. The court then renders the final judgment deciding whether the defendant is guilty, and if so, the severity of the sentence.
The prosecutor and/or the defendant who contest the judgment rendered by the trial court have the right to appeal to an appellate court. The High Court hears the appeals raised against the judgments rendered by the three-judge courts, whereas the appeals against the judgments of a single-judge courts are tried by the appellate division of the District Court. The prosecutor and/or the defendant have the right to re-appeal to the Supreme Court when dissatisfied with the judgment on appeal.
Korean law stipulates that a minimum of one-third of a sentence must be served before an inmate is eligible for parole. In practice, however, a minimum of approximately two-thirds (usually about 70%) of a sentence must be served before parole is considered. Foreign inmates are usually treated more leniently than Koreans by parole boards, but the same policy of serving at least two-thirds of the sentence before parole is granted still applies. Parole is never granted in drug cases.
Public Participation in Criminal Trials
As of January 1, 2008, a new system which allows ordinary citizens to participate in criminal trials as jurors (“The jury system” in the U.S.) has been introduced in Korea. Upon the request of the defendant, the jury consisting of 5 to 9 citizens attends a felony criminal trial along with professional judges and provides advisory opinions. Jurors are required to independently consider whether the defendant is guilty or not and reach a unanimous verdict; if fail, they depend on majority vote. The jury also presents individual opinions on sentencing after the discussion with judges. However, the jury verdict and its view on sentencing do not have binding power over the judges’ decision.
Life in a Correctional Facility
Foreigners are normally treated fairly by Korean correctional authorities. Special sections are generally set aside for foreigners. Medical treatment is available in all correctional facilities. Medical problems a correctional doctor cannot handle are referred to local hospitals. Correctional officials are generally interested in making sure that Americans in their custody are treated as humanely as possible, without opening themselves to accusations of favoritism.
Inmates are allowed to read, listen to the radio and watch TV. Inmates are not allowed to smoke or drink alcohol. But, they are allowed to drink coffee and tea. American inmates are sometimes kept in solitary cells but they often get a chance to talk to other inmates if they work. Meals are adequate. Americans sometimes cannot fully adjust to the Korean diet, so they are often provided with western food upon request. Inmates may earn money in the correctional work program or have money sent by relatives. These funds can be used to buy a small quantity of supplemental food.
Visitors are allowed but the number and length of visits are strictly controlled. Incoming and outgoing mail is censored. Telephone calls are permitted by inmates who have obtained 1st or 2nd ranks. Other inmates are able to make telephone calls only upon permission by the wardens.
Many correctional facilities have workshops where some inmates may be allowed to work at various trades and earn pocket money. Prisoners who have special skills or who have demonstrated good behavior may be given opportunities in prison by performing tasks in fields where they have previous experience. Inmates are given a ranking of 1-4 depending on behavior, participation in work programs, and other relevant factors. Authorities consider this ranking when deciding whether to grant parole.
Inmates may be corporally punished for assaulting or talking back to guards, or for refusing to cooperate or follow instructions. After inmates submit and act contrite, they are often again treated kindly. American inmates should not expect to be spared punishment if Korean prisoners would be punished for the same behavior.
Source: Ministry of Justice (March, 2008)
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