Legal Problems Encountered by American Citizens in the Republic of Korea


The Consular Section of the American Embassy in Seoul, Korea, has prepared 
this information sheet to answer some of the questions American citizens may 
have about legal problems in Korea.  U.S. military personnel and dependents 
covered by the Status of Forces Agreement should refer to their military 
legal assistance offices for information.
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.  A copy of our List of Attorneys is available upon request.

Part I of this information sheet explains Korean laws and the differences 
between U.S. and Korean legal procedures.  Part II briefly explains the 
legal procedures that will be encountered by the American who runs afoul of 
Korean authorities.










SEO-218
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Mar-97(100)

Part I - Korean Law


The July 12, 1948 Constitution of the Republic of Korea, as amended and 
promulgated October 29, 1987, states in Chapter II, Article 12 that,
(1)  All citizens shall enjoy personal liberty.  No person shall be 
arrested, detained, searched, seized 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.

(2)  No citizen shall be tortured or be compelled to testify against himself 
in criminal cases.

(3)  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, flagrante 
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.

(4)  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.

(5)  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.

(6)  Any person who is arrested or detained, shall have the right to request 
the court to review the legality of the arrest or detention.

(7)  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.

Differences Between Korean and U.S. Legal Systems
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 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 may also question a suspect without an attorney 
present.  However, the suspect may refuse to answer questions during police 
interrogation.  In such cases, the authorities will usually allow counsel to 
attend.  Korean attorneys are currently lobbying for greater access to their 
clients.
? Communication

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 will often be a week or more before the Embassy is apprised 
of an arrest.
? Double Jeopardy

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.  If he is unhappy with the 
sentence, he may appeal and request a harsher one.
? Bail

Bail is legally possible under Korean statutes.  However, in practice, bail 
is almost never allowed.
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.  Purposely misstating the quantity of merchandise to evade 
payment of duty can result in confiscation of the goods plus fines of 500% 
of the regular duty.  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.  In addition, use of an 
address to evade customs can result in a loss of APO privileges, plus 
payment of a fine to the Korean government, loss of the merchandise by the 
intended recipient, and a jail sentence.
Drugs
Three separate Korean laws govern drugs and their abuse.  These laws are the 
Narcotic Act of 1989, the Psychotropic Drug Control Act of 1989 and the Hemp 
Control Act of 1989.  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.  At this writing, new, stronger laws have been proposed.  These 
include seizure of assets and the death penalty for certain drug law 
violations.

Traffic Laws
by Lt. Col. David E. Sprowls, 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, 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 death or 
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 the death of, or injury upon, 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 or U-turn;
? 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 on an expressway or restricted 
highway where absolutely no pedestrian could be expected, 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.  The misconception that traffic 
rules favor Koreans is probably caused by language, rather than nationality. 
 Remember, a Korean driver naturally has the advantage over an American 
driver because the Korean can explain the circumstances to the investigating 
police in a light most favorable to them; the same would be true of an 
American driver, who would have the same advantage over a Korean driver in 
the U.S.
Other Legal Problems
U.S. citizens in Korea have committed many crimes including murder, assault 
and defamation of character.  Just as in the United States or any other 
country, running afoul of the law can lead to arrest and conviction.  It is 
imperative that Americans remember that they are subject to the laws of 
Korea, and that some of the rights and privileges Americans have in the U.S. 
cease as soon as they leave the United States.
Visa Status of U.S. Citizens in Korea
Americans should keep their visa statuses current with Korean immigration, 
since violators of immigration and entry/exit regulations are subject to 
fines which are usually levied at the rate of 50,000 to 100,000 won for each 
day of overstay.
Tourists may enter Korea for a period of 15 days without a visa.  (NOTE: 
 The arrival day counts as day number one.)  Foreigners who stay in Korea 
more than 90 days must obtain residence certificates.  Fingerprints are 
generally required of all foreigners over 14 who will be here for at least 
one year.
Children born in Korea need to obtain visas and other pertinent 
documentation, and be reported to Immigration, within 30 days of birth.
Permission is required to engage in any activity (e.g. part-time work) not 
covered by the original visa or status of entry.
Foreigners are reminded to 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 certificate 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.



Part II - Legal Procedures
Arrest
A warrant is generally required before an individual can be arrested in 
Korea.  No warrant is required, however, for a criminal caught in the act, 
or if there is a risk that evidence might be destroyed or the suspect in a 
serious crime might 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.
Questioning
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.
Lawyers
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 retarded, 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, with little attempt to exonerate the accused.
Detention
Individuals can be detained by the police for up to 10 days before formal 
charges are filed.  If the detention is by order of the public prosecutor, a 
10-day extension is permissible.  At the end of this period, police must 
move the case to the prosecutor s office.  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.
Trial
There are four kinds of courts in Korea:  The Supreme Court, High Court, 
District Court and Family 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.
Appeals
After sentencing, appeals may be submitted to the original court within 
seven days.  In some cases, further appeals to the High Court and Supreme 
Court are possible.  Requests for appeal of verdict and/or sentence may also 
be filed by the prosecutor.
Parole
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.
Conditions in Jail
Foreigners are treated fairly by Korean prison authorities.  Special 
sections are generally set aside for foreigners.  Medical treatment is 
available in all prisons.  Medical problems a prison doctor cannot handle 
are referred to local hospitals.  Prison 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.
Prisoners are allowed to read, listen to the radio and sometimes play cards. 
 Prisoners are not allowed to smoke or drink.  Some prisons do not allow 
coffee.  American prisoners are usually kept in solitary cells and get very 
little chance to talk to other prisoners, although efforts are generally 
made to place non-Korean-speakers near each other if possible.  Meals are 
adequate, but very spartan.  Americans sometimes cannot fully adjust to the 
Korean diet.  Prisoners may earn money in the prison work program or have 
money sent by relatives.  These funds can be used to buy a small quantity of 
supplemental foods.
Visitors are allowed but the number and length of visits are strictly 
controlled.  Incoming and outgoing mail is censored.  Telephone calls are 
not permitted by prisoners, but wardens may pass along emergency messages.
Prisoners may be beaten for assaulting or talking back to guards, or for 
refusing to cooperate or follow instructions.  After prisoners submit and 
act contrite, they are again treated kindly.  American prisoners should not 
expect to be spared beatings if Korean prisoners would be beaten for the 
same behavior.  If the guards decide to treat Korean prisoners in a certain 
way, the same may be done to Americans.
Many prisons have workshops where some inmates may be allowed to work at 
various trades and earn pocket money.  Pay is usually 100 won (about 13?) 
per day.  Prisoners who have special skills or who have demonstrated good 
behavior may be given additional opportunities to earn money in prison by 
performing tasks in fields where they have previous experience.  English 
language lessons are often appreciated.
Prisoners are given a ranking of 1-4 depending on behavior and participation 
in work programs.  This ranking is considered by authorities when deciding 
whether to grant parole.
How the American Embassy Can Help
The Consular Convention between the United States and the Republic of Korea 
specifies that  the appropriate authorities of the receiving state shall, at 
the request of any national of the sending state who is under arrest or 
otherwise detained in custody, immediately inform a consular officer of the 
sending state, who shall be accorded full opportunity to visit and 
communicate with such a national in order to safeguard his interests. 
The Embassy will visit a U.S. citizen as soon as possible after arrest, 
usually within 48 hours after notification.  We visit all American prisoners 
periodically prior to sentencing and four times per year after sentencing, 
to assure that they are treated as well as other prisoners in Korean jails.
We inform the Department of State of each arrest.  Neither we nor the 
Department can relay information about arrests to family members or other 
interested individuals without the arrested person s authorization.
We can supply arrested Americans with our list of attorneys from which legal 
representation can be selected if desired.  We can receive and forward 
family or personal funds to pay legal fees and, if necessary later, to pay 
for personal expenses in prison such as supplementary food and postage.
We can supply small amounts of reading material; generally magazines donated 
by Embassy families.  We can receive and forward mail until the prisoner has 
a reliable mailing address; prisoners can mail letters out through the 
prison office.  We can receive and forward packages from the U.S, but prison 
authorities decide the items they will permit.  Food and nonregulation 
clothing are usually not allowed.
We can pass on special requests (for food, hot water, medical attention, 
etc.) to prison authorities.  If a prisoner has specific questions for the 
prison or court that he is unable to communicate on his own, we can request 
and forward answers.
How the American Embassy Cannot Help
We cannot interfere with the legal processes of another country:  we cannot 
get anyone out of jail; we cannot intervene with police or prosecutors 
except to assure that Americans are treated no worse than Koreans would be 
under the same circumstances; we cannot insist that American legal processes 
be practiced by Korean courts; we cannot act as attorneys.
There are no U.S. government funds to pay for attorneys, fines or other 
legal expenses.  If an American cannot get funds to pay an attorney, he must 
rely on a court-appointed defender.  If he is held in Immigration Detention 
awaiting deportation, we cannot supply a ticket home except through a 
repatriation loan when all other possible sources of funds are exhausted.
We cannot supply American food, bedding, clothing or other amenities.