|Korean Labor Laws as the Continent Law and Professional Legal Qualifications in Korea
Authors: Bongsoo Jung / Kumsung Ryu / Gerald Staruiala
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, the UK and other Common Law systems, labor law made by the legislature was criticized as being much more partisanin the interest of the employers.
On the contrary to the Common Law System, in the Korean Legal System, case law is to be secondary and subordinate to statutory law including labor laws. Thus the rules of the procedure before the court have to help the judge to find justice and to let the party who is in the right win the case. Justice is not considered to be a result of the case, but as the source of the rights to be found by the judge. Foreigners will not understand that the Ministry of Labor and Employment is responsible for the Administration of many Statues as the “Government Administrative Organ” and it is the responsibility of the Ministry of Labor, through their decisions, to implement labor law statutes and even to punish people who disobey their decisions or the obligations or prohibitions regulated by labor law statutes. Especially, since Korean labor laws are basically compulsory which sets the minimum standards, an employment contract which establishes working conditions which do not meet the standards provided for in labor laws shall be null and void to that extent, and those conditions invalidated shall be governed by the standards provided in this Act.
III. Professional Legal Qualifications (Attorney at Law, Certified Judicial Scrivener and Certified Public Labor Attorney)
1. Attorney at Law
In Korea, the duties of an attorney-at-law shall be to perform acts related to lawsuits, representation in claims for administrative dispositions or other general legal affairs as delegated by parties or other persons concerned or as commissioned by the State, local governments or public agencies (hereinafter referred to as "public agencies") (Article 3 of Attorney at Law Act). Foreigners from Common Law Legal systems will only be aware of the terms “Lawyer” or “Attorney”.
If the Foreigners are from the UK, they may be aware of the terms “Barrister” who represents clients in the higher courts of law and “Solicitor” who mainly gives legal advice, prepares legal documents. Foreigners from the USA, Canada etc., will be familiar with the services that a Korean Attorney at Law provides their legal services. An American Attorney or Canadian Attorney have almost the same responsibilities, rights, powers and duties in the courts and to their clients.
2. Certified Judicial Scrivener
According to Certified Judicial Scriveners Act, a judicial scriveners perform such duties as a. Preparation of documents to present to a court or the Public Prosecutors’ Office; b. Preparation of documents related to the affairs of a court or the Public Prosecutors’ Office; c. Preparation of documents necessary for registration or application for registration; d. Proxy of application for registration and a case of deposit; e. Consultation on acquisition of property, proxy of application for purchase or application for bidding in an auction case under the Civil Execution Act and a public auction case under the National Tax Collection Act or other statutes, etc(Article 2 of Certified Judicial Scriveners Act). In terms of their duty of preparation documents related to the affairs of a court, they are similar to duties of Solicitor in UK.
3. Certified Public Labor Attorney
According to Certified Public Labor Attorney Act, a person who has passed a qualification examination for certified public labor attorneys shall be qualified for a certified public labor attorney (Article 3 of Certified Public Labor Attorney Act) and performs a. Acting as a representative or an agent for notification, application, report, statement, request (including filing a complaint, a request for examination and a request for a trial) and remedy of rights etc., made to the authorities under labor-related Acts and subordinate statutes；b. Preparing and confirming all the documents under labor-related Acts and subordinate statutes；c. Consultation and guidance regarding labor-related Acts and subordinate statutes and labor management；d. Labor management diagnosis for businesses or workplaces to which the Labor Standards Act is applicable；and e. Private mediation or arbitration prescribed in the Labor Union and Labor Relations Adjustment Act(Article 2 of Certified Public Labor Attorney Act). Such introduction of certification of public labor attorney is closely relevant with execution of public law and judicial powers of administration under the Continental Law System.
The concept of Certified Public Attorneys will be unknown to most Foreigners. The terms “Public” is in reference to Public Law and since they will come usually from a Continental Law system, and not a Common Legal System, they will not know that in Korea the “Labor Laws”, which are administrated by the Ministry of Labor and Employment, and the adjudication process of the administrative tribunal (i.e. Labor Commission) requires that the Plaintiffs are able to provide the Power of Attorney to people who have specialized in the Study of the Labor Laws if they want professional legal aid. Further, many foreigners tend to have the greatest challenge in understanding that a Certified Public Labor Attorney is a Specialist Legal Service Provider who has dedicated thousands of hours of hard work, and tends to be far more efficient, cost effective in dealing with labor issues in Korea. Many “Foreign Legal Consultants” from America may refer to Korean Certified Public Attorneys as “Paralegal” mistakenly, and it indicates that the Foreign Legal Consultant does not fully understand the basis of the Korean Legal System.