Korean Labor Laws as the Continent Law and Professional Legal Qualifications in Korea
Authors: Bongsoo Jung / Kumsung Ryu / Gerald Staruiala
I. Introduction
When giving a consultation to foreigners with regards to Korean labor law, there may be a difficulty in communication. Sometimes, such difficulty results from difference of ordinary usage of a term but, in many more cases, it is due to difference of each country's legal system and from which each country's laws originates.
Basically, fundamental of laws of almost all countries can be classified into the Continental Law system and the Common Law system. Korea has adopted the German Continental Law system whereas English speaking countries have adopted the Common Law System. Each System is a basis of judiciary judgement, which differs in how the judge determines a case, etc.
Meanwhile, Korea acknowledges several certified public professional qualification in addition to Attorney at Law, which needs proper explanation to foreigners in English speaking countries (Hereinafter, the “foreigner” here in this article refers to foreigner in English speaking countries.). I'd like to explain the difference of legal and attorney systems as below.
II. The Common Law System vs The Continental Law System
1. Execution of public law and judicial powers of administration under the Continental Law System
The Continental system started with the French Revolution. According to the declaration of human rights, all law that is the expression of the “volonté générale” is determined by the legislature, the assemblée nationale. The court is only the body that applies the law. The power to make the law has totally shifted from the court to the legislature. The second most important step towards an autonomous new legal system was made by Napoleon. He provided for the whole administration a new type of law, the public law, which was not any more under the jurisdiction of the traditional courts.
The Korean Legal System is based upon such Continental Legal, widely adopted by European Countries, System with Korean Social Philosophy. However, the Continental Legal System, the Korean Legal System and the responsibilities and authorities of each of the Ministries of the Government of Korea in their role in the implementation of the Korean Legal System is widely unknown by Foreigners; workers, or managers alike in English speaking countries.
Foreigners may not understand well that the Civil servants of the public administration protecting the public interest by administrative proceedings (part of public law) are provided with the power to execute and enforce public law. For example, according to Korean Labor Standards Act, a labor inspector, who is the Civil servant of the Ministry of the Employment and Labor shall have the authority to perform the official duties of the judicial police officer in accordance with the Act relating to Persons to Perform Duties of Judicial Police and Scope of the Duties with regard to the crimes in violation of this Act or other laws or decrees pertaining to labor affairs (Article 102 (5) of Labor Standards Act). An employer or a worker shall, without delay, report on matters required, or shall present himself, if the Minister of Labor, the Labor Relations Commission under the Labor Relations Commission Act (hereinafter referred to as the “Labor Relations Commission”) or a Labor Inspector requests to do so in relation to the enforcement of Labor Standards Act (Article 13 of Labor Standards Act), and any person who fails to report or present him/herself or makes a false report in response to a request from the Minister of Employment and Labor, the Labor Relations Commission or a labor inspector or any person who refuses, avoids or otherwise obstructs a clinical or medical examination conducted by a labor inspector or a doctor designated by a labor inspector ; fails to answer his/her question or gives an false answer；fails to submit books and documents；or submits false books and documents shall be punished by a fine for offense not exceeding five million won.
Meanwhile, the Continental law system, which has been largely followed by Korea gives to the minister or its administration judicial powers and judicial functions, with which foreigners are not familiar. (However, United States has the National Labor Relations Board which is an independent federal agency and quasi-judicial body under the National Labor Relations Act) As the best example, according to Korea Labor Standards Act, the Labor Relations Commission is authorized to issue a remedy order to the employer, if the case is determined to constitute an unfair dismissal, etc., after the completion of the inquiry, and dismiss the application for remedy if the case is determined not to constitute an unfair dismissal, etc. (Article 30 (1) of Labor Standards Act) the effect of remedy order, dismissal decisions or decisions on reexamination rendered by the Labor Relations Commission shall not be suspended by an application for reexamination to the National Labor Relations Commission or by the initiation of an administrative lawsuit(Article 32 of Labor Standards Act), and if no application for reexamination is made or no administrative lawsuit is filed within the certain period, the remedy order, dismissal decision or decision on reexamination shall be finally confirmed. In addition, a person who fails to comply with a remedy order confirmed or confirmed after the filing of an administrative lawsuit, or a decision rendered after the reexamination of a remedy order shall be punished by imprisonment of up to one year or a fine not exceeding ten million won(Article 111 of Labor Standards Act).
2. Difference Between a Perception of the Common Law and That of the Continent Law towards Rights and Obligations
Foreigners will not understand the Legal process in Korea entails the administration finding the facts, to establish the “truth” and to decide according to its own findings what is in the common interest (best for the Society of the Republic of Korea). In the common law perception the one who wins the case is “right” whereas according to the continental European perception the one that is “right” is the one who wins the case. Foreigners in English speaking countries will be familiar with a Common Law system and will expect that a “Lawyer” will make a clever legal argument to “convince” the Judge that they are “Right” and the other party is “wrong”, the process is very adversarial.
Further, foreigners will be familiar with that once the “Judge” is convinced that the Foreigner’s “Lawyer” is “Right” then the “Judge” will “decide” the punishment and in the event there is not a “traditional punishment” then the “Judge” has the power to determine what the “punishment” will entail. Foreigners do not understand that in the Legislative Body creates the Public Law, the Administration (Ministries as an extension of the Legislative Body) have the power to implement and to enforce their decisions implementing public law statutes and even to punish people who disobey their decisions or the obligations or prohibitions regulated by labor law statutes. Foreigners will not understand that the statutes ratified by the Korean Legislators contain rights and obligations because Foreigners will be under the standing that a right or an obligation can only be created by the judge and a sentence of the court. The idea of a unified legal system, which includes all possible legal rights and obligations, is not familiar to the common law tradition. According to the perception of the Common Law tradition, the one who wins the case is right. Rights and obligations are not given by the law, they are determined in cases decided by the court, and with an adversarial procedure. For this reason, in the United States, Canada,
|
|
Connect to the app
