SOUTH KOREA Law and Practice Contributed by: Soo Bong Jung, Jinwook Song, Jinwon Choi and Jiyoung Sohn, Bae, Kim & Lee LLC
Bae, Kim & Lee LLC Centropolis B 26 Ujeongguk-ro Jongno-gu Seoul 03161 Korea Tel: +82 2 3404 0000 Fax: +82 2 3404 0001 Email: bkl@bkl.co.kr Web: www.bkl.co.kr/law?lang=en
1. Criminal Law 1.1 Criminal Offences
that, generally, the burden of proof of a crime lies with the prosecutor, and not the defendant. Under the Korean Criminal Procedures Act, the rel - evant facts should be proved beyond a reasonable doubt in order to establish the criminal conduct of a defendant. 1.3 Statute of Limitations Under the Korean Criminal Procedures Act, the statute of limitations varies depending on the specific criminal offence and is determined by the maximum sentence applicable to that crime. For many white-collar crimes, the statute of limitations typically ranges between five and 15 years. The statute of limitations begins to run when a criminal act is completed, or all elements of the crime are satis - fied. In cases of continuing offences, where the impact on legal interests persists, the statute of limitations does not begin to run. Additionally, if the perpetrator flees abroad or remains overseas with the intent of evading criminal prosecution, the statute of limitations is suspended until the person returns to Korea. 1.4 Extraterritorial Reach and Cross-Border Co-Operation Under the Korean Criminal Code (KCC), foreigners may face criminal prosecution for offences involving Korean currency or securities, even if the crimes are committed outside Korea. Similarly, under the Monopoly Regulation and Fair Trade Act (MRFTA), activities that result in a direct,
The Korean criminal justice system does not clas - sify criminal offences into distinct categories, such as “misdemeanours” or “felonies”. Instead, it distin - guishes between “intentional” criminal misconduct and “negligent” actions. To establish a crime, the competent authorities must: • meet the statutory requirements for the specific crime, including its intent or negligence component as appropriate; • prove the absence of exculpatory circumstances, such as self-defence, emergency evacuation or consent; and • determine legal culpability of the perpetrator. Minors under the age of 14, mentally disabled per - sons and those who misinterpreted the law might be exempt from legal culpability. Attempts to commit crimes may be subject to crimi - nal punishment if relevant statutory penal provisions exist. For example, Korean criminal laws allow for the prosecution of attempts in several white-collar crimes, including fraud and embezzlement. 1.2 Burden of Proof Under the Constitution of the Republic of Korea, every defendant in criminal proceedings is presumed inno - cent until the conviction becomes final and irrevers - ible. The Korean Supreme Court has made it clear
255 CHAMBERS.COM
Powered by FlippingBook