1. Importance of the police investigation in a labor case

The police and the prosecution investigate the accuser’s situation in relation to unpaid wages, collective bargaining between labor and management, assault, intimidation, damage to property, and disruption of work in the course of collective action. Generally, the police investigate the situation surrounding the accuser as the victim and the accused as the offender. In this case, how the case proceeds and how to prove one’s side in the investigation process is very important to resolution.

Investigations and criminal proceedings investigate the evidence and determine whether the accused is guilty or not, but in reality, whether or not the accused is prosecuted depends on that party’s ability to prove its claims.

How employers and workers deal with accusations of management abusing its superior position, or sexual abuse, sexual harassment, and fatalities or injuries related to workplace accidents is very important.

How should one respond to searches and seizures by investigating agencies in their search for evidence? How does one respond to a summons? How does one deal with warrants for arrest? There has thus far been no manual on how to prove the facts during the investigation and trial process.

Recently, the spreading of stories that have not been confirmed but run through traditional and social media anyways has damaged not only the image of the parties involved but also the image of entire organizations, which can bankrupt companies due to related reputation damage.

Until an accused is declared guilty of misconduct by a court of law, he should be treated according to the principle in the Constitution of presumed innocent. Unfortunately, there has been no punishment for those who reveal the identity of the accused to the public, although penalty provisions exist. Even if the company's confidential information is leaked inside the organization, and a claim made regarding the related civil damages, assistance is absolutely necessary from the investigating agencies (i.e., the police and prosecutors) who have the right to search and seize to secure evidence.

Therefore, before filing a civil lawsuit, it is possible to request the police and the prosecution that investigated the complaint or petition for the investigation or other documents to use them as evidence: this is often done by the Civil Court when these documents should be submitted to the relevant investigating agency.

In other words, it is difficult for either party to prove the illegal acts which resulted in damage, mostly due to the fact that individuals have no powers similar to the investigative agencies to investigate. This is why an accuser takes the accused to the police for a criminal claim, and then files a civil lawsuit based on the evidence they are able to obtain from the criminal investigation. This is why the outcome of the civil case depends on the outcome of the criminal case. Therefore, criminal proceedings are very important.

For collective bargaining and collective action, companies often claim that the labor union interrupted normal operations with violence, while the labor union insists that the company engaged in unfair labor practices by interfering with legitimate labor activities.

The police frequently ask the National Institute of Scientific Investigation to conduct a large-scale search and seizure to investigate the facts and reveal any concealment of related accidents or incidents, and identify who caused an accident/incident such as an explosion, gas leak, a fall or damage to property or persons.

In addition, labor laws, such as the Occupational Safety and Health Act, have joint penal provisions that punish business owners and their representatives. These provisions also require the company president to attend the investigation hearing. How to deal with such cases is as important as civil disputes related to labor cases, as administrative sanctions are also part and parcel to the findings of criminal cases. These sanctions can include suspension of business, suspension of construction, and restrictions on bidding.

Appointing a lawyer can greatly assist the parties to these criminal lawsuits, but legal fees vary greatly from lawyer to lawyer, and the outcome of the case may depend on the integrity and professionalism of the lawyer.


2. How are labor case investigations conducted?

In cases of unpaid wages, sexual harassment or accidents, an investigation will be initiated by a worker's complaint or report. Investigations can be carried out by the police, prosecutors or the local Ministry of Employment and Labor (MOEL) office, but in most cases the investigation is undertaken by the police.

The question is whether a victim should file a complaint with the police or the Prosecutor’s Office.

According to the “Instructions for Investigation Disposal”, the victim is required to complain/sue to the police department with jurisdiction over the offender's place of residence, the place of occurrence, and the victim’s place of residence. The victim usually takes criminal complaints to the police department with jurisdiction over the offender’s place of residence for its investigation, whereas civil litigation usually involves filing a complaint with the creditor and the court with jurisdiction over the victim's residence.

In some cases, the lawsuit is filed with the public prosecution office. Even if this occurs, the case is handed over to the police, unless the lawsuit is well known to the public. Complaints can also be made orally, but are usually made in writing (filed as written complaints that include the accuser's personal information, the purpose and details of the complaint, and verifying documents). The accusation can be filed with the Anti-corruption and Civil Rights Commission, the Board of Audit and Inspection, or even the Blue House, but most cases are handed over to the police. Complaints can also be filed by mail. A receipt will be issued at the police department's Public Service Center.

When a complaint is filed, a department and person in charge will be appointed, usually within five days of receipt. If the accuser submits a complaint to the police station directly and expresses the desire to have investigation begin that day, this will be done.

According to the nature of the case, if the accusation is related to unpaid wages, the Financial Team will be in charge, while if the case involves a labor dispute resulting in interruption of business operations, the Intelligence Team is responsible. If the case is related to safety, the Special Detective Team takes the lead, while for alleged sexual abuse or sexual harassment, the case will be assigned to the Female and Youth Investigation Team as most victims are female.


3. Investigations begin with an interview of the accuser.

All investigations begin by interviewing the accuser, who is the victim. The investigator will first analyze the complaint. Investigation will determine which charges are to be filed, whether the legal requirements for such charges have been properly met, and whether there is sufficient relevant evidence.

If the complaint is prepared in detail with the assistance of an attorney and it is determined that the accuser is present and the details and circumstances of the complaint do not need to be investigated, the accuser does not need to be part of any supplementary investigation. In most cases, however, the investigation begins with such a supplementary investigation. In that case, the accuser will schedule an interview in consultation with the police investigator.

The investigator will usually contact the accuser with a proposed schedule for the interview, but this can be rescheduled if the accuser needs.

If the accuser is a company representative director, if attending the interview at the police station is difficult due to business activities, such as being on a business trip, the accuser can appoint someone to go in his/her place (a legal team or the relevant labor team for example), fill out power of attorney documents and submit them to the police station, and the representative will attend in his/her stead. If attendance is difficult due to work, times may be chosen when that investigator is on evening, weekend or holiday duty.

Preparing a list of questions the investigator will likely ask and the related answers will help keep the interview process shorter. Once this interview is undertaken, how long it takes will depend on the investigator's ability to investigate and understand the case. In some cases, three hours or more may be required, but sometimes it takes less than one hour.

The answers should be simple and answer the investigator's questions directly. The investigator may ask Yes/No questions, but often “Yes” or “No” is insufficient.

If a question doesn't make sense, the accuser may ask for explanation as to the intent of the question. Occasionally, the accuser or the accused can attend an investigation hearing along with a lawyer for legal support.

The final question in the interview will be: “Do you have anything else to say?” Although it is not usual, it is easy to complete the interview by submitting a written summary of the key points of the case and requesting key items for the investigator to look into. The process is then repeated for the accused.

After the interview, the investigator asks the accuser or the accused to verify that their statements are true and correct. At this time, do not look at the spelling or other superficial things, but ensure what has been explained is written down accurately.

After the interview, the accuser/accused can ask the investigator to attach any submitted evidential documents to the investigation document. After the interview, it is wise to ask if you can copy the investigation report that you have written and read. If the accuser/accused request the police Public Service Center for disclosure of such information, the Center will make a copy of the investigation report.

If the accuser/accused can go home with a copy of the investigation report, he/she can reconfirm the accuracy of the statements. If the information received is different from the facts, he/she may ask for correction and submission of a personal statement correcting that information.

Usually, as the investigator asks questions based on past facts, it may be hard to remember every detail. In such cases, the accuser/accused may reply that he/she does not know or does not remember. If the investigator presses you to remember, you should answer that you do not remember, but you can also explain why you think you do not remember.

In addition, if an investigator asks for legal opinions and thoughts or the opinions of individual investigators, it is necessary to make it clear that you will not respond to such requests for opinions. The investigator should ask for the facts and refrain from asking legal or other opinions. Nevertheless, if they continue doing so, make it clear that you will consult with your lawyer before answering.


4. The importance of obtaining evidence: how is this done?

Unlike civil litigation in which the plaintiff who files a lawsuit is generally liable for verification of their own damage from the defendant, in a criminal case, the onus of proof rests with the police and prosecutors. Therefore, proof of guilt must be provided by the investigating agency.

Problems occur when investigating agencies attempt to put this onus of proof on the victims without any effort to find out independently, on the grounds that they are busy.

In such cases, victims without compulsory investigative rights (such as the right to request attendance and seize and search financial accounts) will not be able to do so adequately. In this case, the victim needs to submit a statement of opinion on which the investigator should summon, search for and seize the place/item, and to which agency the fact-finding inquiry is made. In other words, a request is made to the investigating agency for verification.

Nevertheless, if the investigator does not make effort to follow the accuser's requests to gather evidence, the accuser may submit a complaint to the Prosecutor's Office that the investigation thus far has not been done in good faith.

In a case involving an assault, CCTV footage, vehicle camera footage, etc. may be requested in the event the accused denies anything happened. If you are the victim of the assault, and you have been identified as the accused, you need to ask for on-the-spot verification of the actual facts.

If the details of the injury diagnosis submitted by the parties do not correspond to the assault injury, the hospital that issued such medical certificate may be included in the investigation to find out why there is a discrepancy between the injury and the related medical certificate.

For a sexual abuse or sexual harassment case, it is necessary to prepare and submit a witness statement or a doctor's report (rather than a medical report).

For victims, the submission of a damage history and the relevant time-phased narration form also helps in verification. In particular, in recent cases, submission of relevant evidence using KakaoTalk, mobile phone text messages, and recorded files is increasing.


5. How is the investigation conducted on the accused?

In the case of a complaint, the accused will be investigated as the suspect. Therefore, the accused needs to check with the investigator what the accused has been accused when he should go to the police station. It is necessary to confirm in advance whether the accused is a suspect or a reference person before attending the interview.

This is because if the accused is a suspect, he/she may need to be advised by his/her lawyer and be interviewed in the lawyer's presence, and the interview schedule decided in consultation with the lawyer.

If the suspect does not attend the scheduled interview three or more times without justifiable reason, an arrest warrant may be issued by the court and an investigation conducted with the suspect under arrest.

In case of investigation related to accusation, the accused is unconditionally investigated as the suspect.

However, if the charges listed in the complaint do not constitute a crime or the crimes are not serious, it is better to obtain a statement from the suspect rather than submit a letter of accusation. This is because if you are a witness, not a suspect, there is no legal obligation to go to the police station, thereby reducing the burden on the investigation. If you are being investigated as a suspect, you may need to contact the investigator to find out what the allegations are, and then submit a handwritten description of your response to the allegations in the form of a written statement. This is because the investigator’s report basically answers only the questions of the investigator, but there is no opportunity to explain the details.

Therefore, it is necessary to prepare and submit a summary of the allegations, parts not recognized, and grounds for which they are not recognized. In addition, when preparing a fact-finding statement on the allegations, supporting information should be included as an appendix, with a title for the evidence and the purpose for the evidence included for clarity.

After all, the outcome will depend on how well the investigator understands. If the suspect is questioned during the investigation, he or she may take a break to discuss the direction of an answer with his/her lawyer.
It is also worth noting that interrogations beyond 10 pm cannot be conducted without the suspect's consent. The accused can also ask the police station to copy the investigation document through a separate application for information disclosure.

If the accused feels the speech used by the investigator is coercive, or if the accused feels that a decision on his/her guilt has already been made, the accused may request that the investigator be replaced. This can be done at the police station or the Police Inspection Office. In such cases, however, it is necessary to convincingly describe the reason for the replacement.


6. What to expect if you are arrested or there is a warrant out for your arrest.

Sometimes a warrant for arrest is requested because there is sufficient evidence that a crime was committed by the suspect, the crime is very cruel, there is a high possibility that the suspect will fail to appear and/or destroy evidence, and there is a risk of recidivism. In such cases, whether the warrant is granted or not is decided after the court reviews the application for an arrest warrant.

First, a copy of the request for an arrest warrant is submitted to the court. Then, upon receiving the reason for a warrant, the accused may wish to prepare written statements to deny the allegations that constitute a crime, the high possibility of escape and destruction of evidence. The accuser will need to prepare two copies and submit one to the court at the time the court is considering whether or not to issue the arrest warrant.

As for claiming warrants, the accused must give an explanation of the items that the accused agrees and disagrees on, has provided evidence related to the charges refuted, and has been voluntarily present during police investigations. It will also be necessary to attach a certificate of family relations, and status of his/her residence and job, and emphasize that the amount of evidence the police have already obtained through search and seizure is sufficient, and the possibility exists that the accused will have an unreasonably difficult time protecting his/her rights if he/she is detained.

If the warrant is requested by the police after actual examination of the need, or if the prosecutor at the police detention center requests, the accused will have to wait at the detention center until the necessity for arrest is determined.


7. Your response to a search and/or seizure.

In the event of an accident such as a gas explosion or a falling incident during construction, the police will begin search and seizure against the contractor and its subcontractors. This will target bank accounts, mobile phones, the Internet, CCTV footage, and even corporate computer servers.

In the past, the practice has shifted away from seizing paper items such as company document books to searching for digital evidence to seize on laptops, mobile phones, and even car navigation systems.

What should you do if police officers enter your company premises to search? First, they must present a warrant for such search and seizure. The scope and location of the search should be identified and remain within that range.

In addition, it is necessary to monitor the search and seizure process of investigative agencies such as the police by filming it, and of whether or not they conduct the search and seizure outside the specified range.

A seizure list shall be issued for the goods and documents to be seized. In addition, if necessary for the company's business, such as for tax filing, an application form to claim a refund for the loss of seized items may be requested for prompt analysis and return of the seized items.

When dealing with mobile phones, laptops, and computers, the police and investigation offices are required to participate in the analysis process so as to ensure only the data necessary for investigation is seized.

In addition, the search and seizure shall not be carried out without the participation of the accused or his/her representative. So for example, if computer servers are to be seized, it is necessary to inform the investigators that the computer room manager must be in attendance.

In addition, if a seized mobile phone is discarded, damaged, or information deleted during the search or seizure, the person who discarded or damaged the phone, or deleted information can be charged with the serious offense of destroying evidence. However, it is possible to get a new phone or computer if your original ones are seized.


8. Claims of injustice should be asserted through investigations, written statements in the proceedings, explanations of evidence, petitions, and fact-confirming statements.

In general, the role of lawyers in criminal cases is limited because lawyers do not have the right to see and check the documents in the investigative process. The only way to know about the criminal investigation is to be appointed as a lawyer for a suspect, a victim, and witness, and participate in the police and prosecution's interrogation process to advise the client on the content of the questions.

However, the investigating agency often refuses to have the lawyers participate in the investigation process because the victim and the reference person are not the suspects.

Recently, however, in order to guarantee the right of the person under investigation, the Ministry of Justice has allowed the recording of interrogations during the investigation process. However, in the case of the substantial examination of the arrest warrant, there is a limit to explain the injustice of the arrest based upon only the copy of the warrant.

Participation of the attorney for the accused in the investigation process is essential in terms of the right of defense during the investigation, but the reality is that it is not utilized properly because lawyers consider it time-consuming, profitless, troublesome, and often charge separate fees for participation.

In spite of this, lawyer participation is important for the practical advice they can give on how to answer the investigator's questions during the investigation process.

In such circumstances, some suspects may use their cell phones to record coercive behavior and unfair interrogation attitudes by the investigator and use it as evidence to deny their statements given during interrogation in any future trial. Of course, it is not illegal to record with a mobile phone during an investigation, but it is difficult to actually record without the investigator recognizing it immediately.

But it is important, as recordings are vital to proving coercion and bias on the part of the investigator(s).

In addition, it is necessary to ensure a non-coercive or biased interrogation by a later investigator. This will be more likely if the coercive and biased nature of the first interrogation can be clearly described.

Next, lawyers can be useful in shifting the investigator's perception of the investigation by preparing and submitting opinions on its direction and the facts of the allegations in the form of a legal opinion. Some attorneys may not wish to give investigators negative feedback and therefore will avoid writing their opinions, but this is wrong.

When attending the investigation process, you can understand how the investigator understands the case. You can gain indications about whether the investigation will lead to prosecution or a declaration of innocence. In such a case, if the investigator's direction of investigation is not objective, it will be necessary to submit a written opinion of that fact.

In such a statement, the accused (the suspect) needs to comment on whether the investigator has enough evidence to determine whether prosecution will proceed, or point out the facts and errors.

The accuser (the victim) will need to include in such an opinion his/her views of the objectivity of the investigation by that investigator, the collection of evidence and decision-making, and any legal errors.

If you do not have a lawyer, submit your opinion in the form of a written statement, but be sure to attach any supporting evidence or reference materials. In addition, when submitting such opinions, make sure it is included in the investigation record so that it can be used as evidence in the event of prosecution and during the trial process.

If the case is not solved well because of disagreement between the accuser and the accused, it is necessary to go to the scene of the alleged crime and confirm.

For cases involving sexual assault and/or physical violence, it is also a good idea to take photos or video of reenactments (which show people roleplaying the offender(s), victim(s), and witnesses) there and submit to the investigating agency as reference.
For cases involving assault and/or injury, the medical certificate/diagnosis may seem suspicious. Therefore, it is necessary to compare and analyze the issuance history of medical certificates, injury site, and severity of injuries. It will take some time to receive the issuance history of medical certificates and a written diagnosis of injury and treatment from the issuing hospital. It is also important to make the investigation agency to clarify the details of any medical certificates.


9. The accused should submit a written statement to the police investigator. What needs to be in this written statement?

It is necessary for the accuser, the accused, and the witness to frequently submit information to the investigating agency in the form of written statements, urging that the investigation be conducted fairly.

In general, this would be a lawyer’s purview, but lawyers rely heavily on data and statements from their clients (case parties) and avoid onsite visits to keep costs lower. However, it still remains necessary to submit information that comes to their attention about the case to the investigating agency in a timely manner to assist with identification of the facts.

A statement of opinion may be written to the investigator before or after the investigation to support relevant claims, or to counter evidence presented by the other party.

In particular, if an investigator does not have any specialized knowledge in the field of work where an industrial accident has occurred, or simply asks a representative of the company or field manager to determine responsibility for the accident, written opinions can be submitted with onsite photographs or related drawings and references attached to help the investigator understand the situation surrounding the accident.

When submitting photographs, be sure to include the date and time the photographs were taken and descriptions.

You can also think about how a statement should be worded and sent to the investigator if the person who has a statement to make in your favor is in another country or a remote area, making it difficult for that person to visit the police station.
In some cases, your written statements may be notarized by a notary office, but this has limited meaning as notarization only verifies that the statement was written by you.

If the police terminate the investigation, sending on an opinion to the prosecution office whether to indict or not, the parties concerned need to ensure their dissent is put on the investigation records along with the opinions of the police. It is very helpful for the prosecution to see this written dissent when reviewing the investigation records.

If the investigators do not know the incident site well, they cannot properly investigate the case. As investigators do not usually visit such sites, it will not be properly preserved, and evidence can easily disappear. Lawyers also do not usually want to go onsite either. Therefore, it is up to the related parties to take video and photographs of the incident site and attach explanations to the investigating agency. Such image data can be used as evidence in later court appearances, and is also effective in enhancing the understanding of judges.


10. Q&A interviews are common, so they must be expected.

Most criminal cases begin with a summons and question-and-answer interviews. When search and seizure is warranted, related persons will be summoned to verify the items seized and searched.

The defendant’s lawyer will need to prepare a defense as a way to offer input into how the investigating agency should proceed with the investigation. In other words, he/she will prepare for some questions expected in the investigation and deal with where the investigating agency will seize and search for evidence.

Sometimes the accuser, or the attorney who must argue for the victim's position, will need to work hard to ensure the investigating agency properly identifies evidence of damage and where that evidence can be found.

The accuser or his/her attorney may have to urge investigators to seek out the relevant documents or facts or search for and seize concealed related items to prevent their destruction.
Most people are reluctant to be summoned by the police or prosecutors. There have been cases where an arrest warrant is issued because someone has ignored a summons without justifiable reason.

To avoid arrest, summoned persons must go to the investigative office for the interview. There are cases where summoned persons feel such a great burden about going to an investigating agency because they do not remember the details of an incident well. Sometimes there is fear of making false statements and receiving criminal punishment because of mistakes. This can lead persons to commit suicide before they are to appear, the strain can be that great. There is also the fear of being arrested during an investigation.

Therefore, if you are summoned, you need to ask whether you are being summoned as a suspect or a person of reference. If you are a suspect, you need to ask about whether you will be free to go home only after the interview is complete, how long the interview will take, and what the content of the interview will be. In some cases, the investigator may not be able to answer questions like these, but he/she may be able to give you an overview. This will allow you to prepare properly before the Q&A interview.

A mobile phone can be brought, although it may be confiscated during the interview, as can be the case with passenger cars, which may also be searched at home or the office. What you cannot answer while you are being interviewed can be answered by someone you know.

Sometimes, when being investigated, you can ask someone to answer questions to which you don’t know the answers. This is because the credibility of other factual statements you might make can be questioned if you answer without knowing enough about something. If you can't remember because it was a long time ago, you can respond according to your memories, presenting the relevant documents or materials.

In any case, potential questions and responses can be presented to the investigator prior to visiting the investigating agency. Sometimes investigators ignore this list, but those who are busy can find your prepared questions and answers helpful.

The most difficult part of the Q&A interview is to summarize your answers in writing. It is difficult for investigators to write down your verbal statements properly if the answers are long and complicated. So sometimes an investigator answers his own questions, which can also occur if an investigator's question is not specific, but rather ambiguous and abstract, and simply confirms the investigator's own opinion. In such cases, it can be helpful to prepare answers in writing or help to type your answers directly for the investigator.

For questions whose answers need technical and professional knowledge, it is a good idea to avoid answering specifically at the time and instead prepare an answer later to submit as an opinion.

Information sought in the investigator’s questions usually include the summoned person's personal information, such as resident registration number, occupation, place of residence, contact information, situation of property, and health.

Regarding residence, the investigator is looking for the address where he/she can contact you. Regarding occupation, it is better to answer with details rather than simply “unemployed” as if you are a suspect you may be deemed a “flight risk”. As assets are not matters to be checked by the investigating agency, it is good to state your monthly income if questions are asked about assets.

Regarding questions about your health, the possibility of arrest and detention exists for a suspect, so explaining your health conditions in detail is a good idea. You can also submit an official letter from the National Health Insurance Corporation regarding your health.

Investigators should ask questions regarding facts whenever possible. The questions should be short, simple, and easy to understand so that the person being interviewed can understand them. Asking the investigator's legal opinion or facts about his or her knowledge is likely to give the perception that you believe the investigator is conducting the case with prejudice. If you are asked for your opinion about the investigator's legal views or judgment on your case, it is good to say that you do not have to answer such questions, but will do so only through a lawyer.

In addition, if the investigator asks only your opinion about his thoughts, does not seem to be after a fair investigation of the case regarding which you were summoned, or constantly interrupts your answers, you need to ask for a piece of paper so that you can write down that the investigator's questions seem irrelevant to the case, or his opinions seem to be based only on his own thoughts, or state that you strongly doubt the fairness of the investigation because the investigator does not allow you to complete your answers. In this way, you may be able to prevent the investigator from disadvantaging you through your comments.

Findings from an interview may vary depending on the investigator's understanding and personality. Therefore, it helps to ponder what questions might be asked and prepare answers in advance.


11. What if I have requests for the police or prosecution during the investigation?

You can request a copy of the documents related to the investigation held by the police through an information disclosure request. You can also ask for return of any seized items. For mobile phones and computers, information necessary for the investigation by the investigating agency will need to be extracted, but a request can be made to the police that other data be excluded. In addition, requests can be made that any seized documents required for filing taxes, such as accounting books, be returned.

If a victim is concerned about retaliation, he or she can ask the investigating agency to provide personal protection, ask for anything learned during the investigation be kept confidential, or ask them to use a pseudonym for yourself when writing their report.

You may request an investigation with witnesses to ensure the authenticity of your statement. It is also possible to request that opposite party statements that contradict your own be verified through a lie detector test to confirm their credibility, but the other party is not obliged to respond.


12. How can I use police investigation documents as proof of proceedings in civil cases such as claims for related damages?

There are many cases in which criminal investigation records are used in related civil litigation cases. In civil litigation, the plaintiff (usually the worker) seeks to prove the relevant claim (for example, the illegal actions of an employer in a claim for damages caused by those illegal actions), as without a criminal case being conducted beforehand, the plaintiff would not have access to the evidence necessary to prove his claim. However, here the onus is on the plaintiff to prove that the defendant caused damage.

The plaintiff can ask the investigating agencies in the criminal case to provide the related investigation records so that the civil court has access to them.

When such a request for investigation records made with the investigating authority is accepted by the court, the investigating authority must send the court all records, which can then be used as evidence.

In addition, the parties concerned may request to inspect the documents or submission of other important documents kept by the investigating agency, to see if they are of use in the civil case. In other words, in litigation related to dismissal, and unfair dismissal applications, the court may request that the investigating agency submit related documents, etc., etc. to prove the cause for dismissal.


13. Good use must be made of evidence statements.

For both investigations or trials, facts are acknowledged by evidence. In criminal trials, the accused is presumed to be innocent, so the investigator must prove guilt. Investigators should be proactive in their attestation but may not be very competent. Therefore, it is necessary to urge investigators who perform verification activities on behalf of the victims regarding reliable verification evidences.

For accusers without the right to compulsory investigation, that is, to summon persons for interviews and execute search and seizure warrants to collect evidence, guilt is difficult to prove.
It is necessary to request investigators to collect evidence by designating witnesses (witnesses, reference persons), seizure search sites, and requesting fact-finding agencies to find facts.

For evidence collected for criminal cases, the victim needs to provide to the investigating agency the name of the item and the purpose, explaining how it helps prove a fact or facts. This would be done in a document entitled Explanations of Evidence.

On the other hand, if you are investigated as the accused, it is necessary to refute the evidence presented by the victim or investigating agency.

When providing testimony, the evidence shall be rebutted, as well as reason given for and evidence of the credibility of statements. Rebuttals of presented evidence include suggesting that it may have been forged, manipulated or irrelevant to the case at hand.

Sometimes relevant judicial rulings need to be provided for reference.


14. What are some criminal cases that may arise in the collective bargaining process and how should they be dealt with?

In the collective bargaining process, the union sometimes enters a complaint about the employer to the local MOEL Office, insisting that the employer has committed unfair labor practices, such as illegally collecting union members' personal information, stealing union-related secrets, secretly observing trends in the union, or coercing union members to withdraw from the union.

In connection with this, there is a case where a statement by the union member as well as information sent over the company's internal communication network were leaked and used as evidence. The company also secured evidence such as the union leaking confidential company documents, defaming managers in charge of labor, engaging in illegal filming, and distributing falsehoods about the company through the company's communication network. The company sued the union for defamation, damage to reputation, and for violating laws on the confidentiality of telecommunications.

When such a complaint comes, the investigating agency will uncover the facts of the allegation through an interview of the accuser and analysis of the presented evidence. The accused then responds by securing and explaining his/her own evidence, and refuting the evidence presented by the accuser.

Labor unions can use placards, demonstrations and SNS article comments, company-provided offices, and even representatives' houses to promote their claims to the media.

Labor and management sometimes have to handle criminal cases rather than engage in collective bargaining. This delays collective negotiations. In such cases, it is necessary to urge investigating agencies to take care of the case accurately and quickly by actively requesting in writing opinions on relevant cases so that the cases can be dealt with fairly and quickly.


15. What are some criminal cases that may arise in the collective action process and how should they be dealt with?

A company may need to handle violations of law and illegal collective actions such as illegal sit-ins, damage to property, obstruction of business related to damage to property, and violence related to union strikes. The union may need to handle management violating the law or violence in the process of breaking up sit-ins and damage to property.

Companies can use security services to protect company property, such as through workplace lock-out measures in response to a union strike. In such cases, the management needs to ensure the security company has been formally registered, and whether the necessary training has been completed before assigning them to the workplace.

In addition, it is necessary to supervise the management personnel in charge of pre-deployment training to instruct them on how to avoid infringing on human rights and avoid the use of violence. Access to the company-provided union office in relation to legitimate union activities must be guaranteed. Companies may contact the local MOEL office in advance and request placement of a labor inspector.
In addition, if there are concerns about physical conflict related to entering or exiting company premises or occupation of the business site, evidence to support such concerns needs to be obtained, such as through CCTVs or a camera installed on the rooftop, along with a request for reinforcement from the police. There is also a need to deploy staff assigned to use their cell phone cameras to record what they see and hear.

It may also be necessary for countermeasures to be in place to prevent persons from going up to high locations on the premises in advance, such as towers, gantry cranes, chimneys, roofs, etc. Efforts may be needed to ensure dangerous goods unrelated to occupations on the yard are not brought on the premises in advance, and fire inspections conducted in cooperation with a fire station.

It is always a good idea to check with the police whether or not the labor union has reported its intention to hold a rally or demonstration and whether such report was done in accordance with the necessary procedures, and whether the planned demonstration was reported as it was conducted. A note can be sent to the police in advance to request their assistance in protecting company facilities.


16. How does one notify the police of rallies and demonstrations involving one’s company?

The police receive many reports of demonstrations in response to labor disputes. A report of a planned demonstration must be delivered in person to the police station, when that station starts its work in the morning. Applications to hold demonstrations should be filed at the police station information section (the officer in charge of rallies and demonstrations in Information Section 1). The date and time of the demonstration, location, number of participants, purpose, and the picket signs that will be displayed will be submitted. The persons to maintain order should also be appointed and listed.

In this case, check the drawing (map) related to the venue for the demonstration to ensure the police checked it when receiving the application to demonstrate.

A company's main entrance is frequently designated for collective action to put pressure on the employer, as employees, customers, and company vehicles pass through frequently. Some demonstrations involve union members using a loudspeaker in front of the house where the representative director resides, and installing placards that criticize the management and company.

In response, the company should submit an information disclosure request to the police station to release any report from the union notifying the police of the venue chosen for the demonstration. It can also be discovered whether the demonstration is being carried out in accordance with the notification received at the police station. In the event this is not the case, a complaint can be filed with the police station. To this end, the company needs to collect evidence regarding criteria for acceptable levels of noise and whether it has deviated from the meeting place.

On the other hand, it is necessary to ask the police to check the actual rally once a rally report is received by the police, as rallies often do not take place after a rally report has been submitted.

The purpose of reporting a demonstration beforehand is to guarantee the right of students to pass safely through to their classes and to learn in quiet, the right of residents to get a good night's sleep in residential areas, and in factory areas, to ensure no interference with commercial vehicles arriving to and departing from the factory premises. A complaint may need to be submitted to the police station in the event of any violation of these rights.


17. What are the criteria for deeming certain activities as “violent” in a rally or demonstration and how should the necessary evidence be collected?

If a demonstration is held without it being reported to the police beforehand, or takes place outside the scope of reporting, it may be determined an illegal demonstration. Most people are penalized for demonstrating outside of a reported demonstration place, violating noise standards such as with loudspeakers, or carrying weapons or other dangerous goods outside the declared demonstration items.

Sometimes there is physical conflict in the process of a police officer or facility manager restraining persons violating the law. He or she can be accused of hindering the constitutional freedom of assembly while the accused will complain that the other is violating property rights and the right to free flow of traffic. In this case, the police will decide by evidence collected at the scene. Therefore, it is necessary to photograph the demonstration process using CCTV and/or mobile phone cameras.

In addition, it is necessary to secure onsite witnesses and submit a description of the demonstration process. When submitting photographs or video materials, it is also essential to include the photograph date and time, the photographer, etc., to help the investigator better understand.
In general, a mobile camera installed outside the company building can be helpful in collecting evidence when protesters are expected to enter company premises while protesting outside.

In recent years, people who specialize in filming demonstrations often distribute videos through YouTube and in the form of edited live broadcasts intentionally, as the company tries to block the union’s demonstrations.


18. What preparations are needed if violence is expected at a rally or demonstration?

A request must be made to the police for them to assist with protecting the facility. The employer should describe what types of losses might occur, such as from violence during the demonstration or from traffic disturbance, disruption of the company's business, installation of illegal facilities, road accidents, and damage to company property. For example, the employer can ask that the police send a patrol car, assist with protecting transportation and business, and help to ensure the demonstration does not get out of hand. If the reason for the demonstration is a labor dispute, a notification letter should be sent to the competent MOEL Office.

In addition, it is important to ensure the location of CCTVs around the site is conducive to filming illegal activities on company premises. If there is sufficient evidence of illegal occupation of roads and facilities, posting of placards that damage business or reputation (including distribution of such handouts), and dissemination of falsehoods about the company or a specific person through the Internet, the company can request an investigation.

Videos of demonstrations have recently been increasingly posted on YouTube, and if, thorough analysis leads to discovery of illegal acts during collective action, civil (claims for damages) and criminal charges (defamation of character for the purpose of intentional fraud under the Act on Promotion of Information and Communications Network Utilization and Information Protection) can be leveled.


19. What can be expected if a labor case is prosecuted?

Cases under investigation by the MOEL Office and the police are sent to the prosecution, which analyzes the cases and decides whether they will be prosecuted or not. If the prosecution decides to dismiss a request for prosecution, the victim (the accuser) may file an appeal with the High Prosecution Office.
In this case, the accuser must first ask the Prosecution Office, which rejected the prosecution request, to make a copy of the reason for its rejection. In addition, through analysis of the reasons given, an appeal may be justifiable on the grounds of the investigation being incomplete, evidence being misinterpreted, or misjudgment of a legal principle. Whether the accuser who sued without falsified facts belongs to a charge on a false accusation or not can be established by the prosecution who has decided to dispose of the complaint.

In the event a decision is made to prosecute, it is possible for a related party to read and examine the investigation records of the police, the prosecution and the MOEL Office, which could not be read before the decision to prosecute. Therefore, when the accused has been indicted by the court, he or she should apply for a copy of the investigation records, which they should then analyze.

Victims (accusers) can also apply to the Court for a copy of the investigation records, but such a copy may be issued and read only to the extent that they apply to the victim.

In cases where there are many controversial issues in the case before the trial starts, the court takes preliminary procedures in advance, holding preparatory procedures for the issues. The expected trial proceedings and their scheduling are negotiated between the court and the parties without the accused in attendance.
If copies are not received of the investigation records, the details of the case cannot be known, and the content of the indictment cannot be acknowledged. The accused cannot answer approvals or disapprovals without verification of evidence.

Therefore, the trial can only proceed if it has been preceded by an inspection of the case records by the court. Regardless of whether or not a lawyer is appointed, the accused can closely examine the records of the case and of the investigation and express his/her opinion of the facts behind the criminal case listed in the lawsuit, and acknowledge, disagree with, or confirm the evidence in the evidence list. The accused must then prepare and submit to the court a statement of the part(s) of the prosecution's complaint he agrees with, and evidence against the part(s) he does not.

If the prosecution disagrees with the use of evidence by the accused, the prosecution shall request that a witness give testimony. The accused may also apply for witnesses to prove his case through cross-examination of the prosecution’s witnesses. Therefore, in the interest of such witness testimony being properly executed, it is necessary to carefully review and analyze each witness’s written statement and interview reports.

For the lawyer, responses to the prosecutor's questions must be prepared after the prosecution's probable witness. However, it is advisable for the lawyer to prepare the written papers for presentation while presenting the relevant evidence and data in court, taking into account the fact that witnesses vary in their testimony from time to time.

Witness interviews should focus on presenting evidence and pursuing the facts rather than seeking answers to questions of legal opinion. The interviewer should stick to the facts of the side they support. After questioning a witness, the prosecutor will investigate the evidence documents that the prosecution intends to submit. The evidence examiner will explain the evidence in the court and listen to the accused in relation to his/her opinion of the evidence.

Occasionally, the accused may apply for a copy of the document records from the prosecution in consideration of the fact that the prosecutor will not present evidence in favor of the accused. In such cases, it will need to be clarified that these documents should be submitted to the court, despite the fact that the prosecution normally keeps them.
If other related criminal cases are in progress in other courts, or being investigated by the police or prosecutors, it is necessary to submit a request to the court to send the necessary documents to those courts and agencies and to provide the court with the necessary evidence. Determining guilt or innocence depends on the evidence. Therefore, when the investigation of evidence is complete, it is necessary to analyze the opinions relevant to that evidence, the process of recognizing the facts through the evidence, and any legal use issues, and submit a written opinion to the court.