SOUTH KOREA Law and Practice Contributed by: Sang Wook Cho, Soojung Lee, Seung Hyun Lee, Tae Eun Lee and Christopher Mandel, Yulchon LLC
within their organisation to investigative authorities, unless explicitly opposed by the victim; and there are fines for non-compliance. Even if the victim or a third party has already filed a criminal complaint, the employer’s duty to report is not waived. For incidents under investigation by the authorities as a result of an employer’s report or a victim’s complaint, it is customary for employers to initially suspend disci - plinary proceedings and, after the investigation results are available, determine the type and severity of dis - ciplinary action based on those results. An employee may be temporarily suspended with pay (or partial pay) if necessary under the circumstances, pending the outcome of an investigation by the authorities. Even if an employer is not legally obligated to report certain crimes, failure to establish a system for control - ling illegal activities through disciplinary procedures or for reporting suspected or actual criminal acts involv - ing employees may expose the company’s directors to liability for breach of their duty of oversight, which may result in damages. Employers should take this into account and implement appropriate measures. In some cases, voluntarily reporting criminal conduct may result in reduced fines or corrective measures imposed on the company, or even exemption from criminal prosecution. For instance, under the Korean fair-trade law, a leniency programme for cartel behav - iour offers such benefits. These considerations should also be factored into the employer’s decision-making. Under Korean law, certain offences are subject to joint penalty provisions. For example, when an employer takes disadvantageous measures against an employ - ee who reported workplace harassment in violation of the Labour Standards Act, or discriminates against a worker based on sex, marital status, pregnancy, or childbirth in violation of the Equal Employment Opportunity Act, both the individual perpetrator and the corporation or employer may face criminal liability. To be exempted from such liability, the employer must demonstrate that it exercised due care and supervi - sion over the relevant duties to prevent the employee’s violation. The Supreme Court has held that this deter - mination requires careful consideration of multiple fac - tors:
• the legislative purpose of the statute; • the degree of harm to legal interests expected from the violation; • the rationale for joint criminal liability; • the specific circumstances and actual conse - quences of the violation; • the corporation’s operational scale; • the corporation’s capacity to supervise the perpe - trator and the nature of their supervisory relation - ship; and • any preventive measures the company actually implemented. However, in practice, companies or employers are rarely exempted from joint liability. 8.5 Multi-Jurisdictional HR Internal Investigations Special procedures are not generally required when conducting a multi-jurisdictional HR internal investiga - tion. Unlike procedures conducted by state authori - ties, which are strictly limited from the perspective of sovereign protection, HR internal investigations are conducted by private companies and are therefore not subject to the same jurisdictional restrictions. However, employers must thoroughly understand and comply with the substantive and procedural laws of each applicable jurisdiction to ensure that internal investigations do not violate local regulations. Addi - tionally, when headquarters and subsidiaries located in different countries share information related to inter - nal investigations, particular attention should be paid to safeguarding trade secrets and other confidential information. To protect employees’ privacy, it is also essential to closely review and adhere to the data pro - tection laws of each jurisdiction. For reference, attorney-client privilege has not tradi - tionally been recognised in Korea, and as a result, communications with external counsel and legal advice obtained during internal investigations could be subject to compulsory seizure during investigations or trials. However, with the passage of an amendment recognising attorney-client privilege by the National Assembly plenary session in January 2026, such risks are expected to be significantly reduced. That said, exceptions may apply where the client has voluntarily
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