SOUTH KOREA Law and Practice Contributed by: John H. Choi, Changhun Lee, Hyunah Kim and Jae-Hyuk Choi, Shin & Kim
The dawn raid must be conducted within the place of business stated in the notice of inves - tigation. If it becomes necessary to investigate another location, this can only be done after issuing a separate notice of investigation that specifies such place of business. The rules of investigative procedure prohibit targeting a com - pany’s legal team or compliance department in principle, unless these departments are directly involved in illegal activities or destruction of evi - dence. The investigating official must conduct the inves - tigation within the regular working hours of the investigated company. Moreover, the investigat - ing official must complete the investigation with - in the investigation period stated in the notice of investigation. If an extension is necessary, the investigating official must provide an additional notice indicating the extended period and the reasons for the extension. 2.3 Spoliation of Evidence Under the MRFTA, if a company, an officer or an employee interferes with the KFTC’s inves - tigation by means such as hiding or destroying materials or objects requested by the KFTC, refusing access or forging or falsifying materi - als, the KFTC may file a referral to the prosecu - tors’ office regarding the company, officer or employee who interfered with the investigation. If the prosecutors’ office indicts in connection with this, the court may impose imprisonment for up to two years on the relevant employee, or a fine of up to KRW150 million on the company or relevant employee. Furthermore, the destruction of cartel-related evidence may also constitute a criminal offence under the charge of evidence destruction. If officers or employees destroy evidence pertain - ing to their company’s involvement in a cartel,
such actions may be regarded as “destroying evidence related to another person’s criminal case” which is punishable by up to five years of imprisonment or a fine of up to KRW7 million. 2.4 Role of Counsel In principle, if there is a request by the investi - gated company, the investigating official must allow counsel appointed by the investigated company to participate in the entire investigation process. However, counsel may be prevented from participating if the request is deemed to delay or interfere with the investigation, if the counsel responds on behalf of the investigated company or induces a specific answer, or if the counsel films, tapes or records the content of the interrogation. In addition, in relation to cartel investigations that require urgent investigation due to concerns such as the destruction of evidence, investiga - tions may be commenced regardless of whether the request for counsel participation is granted. Officers and employees of an investigated com - pany that is subject to the KFTC’s investigation do not need to appoint counsel other than the counsel appointed by the investigated company, unless there is a conflict of interest. Of course, officers or employees may appoint separate counsel based on their own judgement. At the initial phase of the investigation, defence counsel should focus on reducing the scope of the charge against the investigated compa - ny. For example, it may be necessary to iden - tify and analyse issues about which the KFTC might be suspicious in the statements made by an investigated company or in the contents of the materials in custody, establish defence logic against them, and actively explain them to the KFTC from the initial phase of the investigation.
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