I. Introduction

When providing consultation to foreigners with regards to Korean labor law, there may be difficulty in communication. Sometimes, this results from a difference in ordinary usage of specific terms but, in many more cases, it is a result of difference in each country's legal system and its origin.

Basically, the fundamental laws of almost every country can be classified as either continental law or common law.  Korea has adopted the German continental law system whereas English speaking countries have adopted the Common Law system. Each system forms the basis of judiciary judgement, which differs in how judges determine a case, etc.

Meanwhile, Korea acknowledges several certified public professional qualifications in addition to “Attorney at Law,” which needs proper explanation for foreigners in English-speaking countries. I'd like to explain the differences in legal and attorney systems below. 


II. The Common Law System vs the Continental Law System Discussion regarding Common Law and Continental Law refers to [Common Law and Continental Law: Two Legal Systems, April 22, 2005, Professor Thomas Fleiner, Director, Institute of Federalism, Fribourg, Switzerland]


1. Execution of public law and judicial powers of administration under the continental law system
The continental system began during the French Revolution. According to the Declaration of the Rights of Man and of Citizens, all law that is an expression of the “volonté générale” is determined by the legislature, the assemblée nationale. The court is the body that applies the law. The power to make the law 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, public law, which was no longer under the jurisdiction of traditional courts.

The Korean legal system is based upon such continental law, widely adopted by European countries.  However, the continental law system, the Korean legal system and the responsibilities and authorities of each of the ministries making up the Government of Korea in implementation of the Korean legal System is widely unknown to people in English-speaking countries: workers and managers alike.

Foreigners in Korea may not understand well that civil servants protecting the public interest through administrative proceedings (part of public law) are provided with the power to execute and enforce that public law. For example, according to Korea’s Labor Standards Act, a labor inspector, who is a civil servant working for the Ministry of Employment and Labor, has 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 their Duties with regard to violations of this Act or other laws or decrees pertaining to labor affairs (Article 102 (5) of the Labor Standards Act). An employer or worker shall, without delay, report on matters required, or shall present himself/herself, 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 such in relation to the enforcement of the Labor Standards Act (Article 13 of the 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 a false answer; fails to submit books and documents; or submits false books and documents, shall be punished by a fine not exceeding five million won.

Meanwhile, the continental law system, which Korea largely follows, gives to the minister or his/her administration judicial powers and judicial functions, with which foreigners are not familiar (However, the United States has a 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’s Labor Standards Act, the Labor Relations Commission is authorized to issue a remedy order to an employer, if the case is determined to constitute an unfair dismissal, etc., after completion of an inquiry, and dismiss an application for remedy if it is determined not to constitute an unfair dismissal, etc. (Article 30 (1) of the Labor Standards Act). The effect of remedy orders, dismissal decisions or decisions on reexamination rendered by the Labor Relations Commission shall not be suspended by an application to the National Labor Relations Commission for reexamination or by initiation of an administrative lawsuit (Article 32 of the Labor Standards Act). If no application for reexamination is made or no administrative lawsuit is filed within a specified period, the remedy order, dismissal decision or decision on reexamination shall be finally confirmed. In addition, any person who fails to comply with a confirmed remedy order - including confirming that occurs after completion of an administrative lawsuit - or a decision rendered after 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 the Labor Standards Act).

2. Difference between common law and continental law towards rights and obligations

 Foreigners will not understand the legal process in Korea entails the administration finding the facts and acting on its findings to make a decision as to what is in the common interest (best for society in the Republic of Korea). In the common law view, the one who wins the case is “right” whereas according to continental European perception, the one that is “right” is the one who wins the case. People in English-speaking countries will be familiar with common law and will expect that a lawyer’s clever arguments will “convince” the judge that they are right and the other party is wrong: the process is very adversarial. 

Further, people from English-speaking countries – known as “foreigners” in Korea - will be familiar with a judge that is convinced that one lawyer is right, will then decide the punishment. In the event there is no specified punishment, then the judge has the power to determine what the punishment will entail. Foreigners in Korea do not understand that while the legislative body creates public law, the administration (ministries as an extension of the legislative body) have the power to implement and to enforce their decisions in implementing public law and even to punish people who disobey their orders or obligations or prohibitions regulated by labor law statutes. The idea of a unified legal system, which includes all possible legal rights and obligations, is not familiar in the common law tradition. According to 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 through adversarial procedures. For this reason, in the United States, Canada, the UK and other nations using the common law systems, labor law in Korea, as created by the legislature, has been criticized as being much more biased in the interest of employers.

Contrary to the common law system, in the Korean legal system, case law is secondary and subordinate to statutory law, including labor law. Thus the rules of the procedure before the court have to help the judge to find justice and to ensure that the party who is in the right wins the case. Justice is not considered a result of the case, but as the source of the rights to be identified by the judge. Foreigners in Korea will not understand that the Ministry of Employment and Labor is responsible for the administration of many statues as the “government administrative organ” and it is the responsibility of that Ministry, through its decisions, to implement labor law statutes and even punish people who disobey their orders or the obligations or prohibitions regulated by labor law. Since Korean labor laws are basically compulsory and set the minimum standards, an employment contract which establishes working conditions which do not meet the standards provided for in labor law shall be null and void to that extent, and those conditions invalidated shall be governed by the standards provided in labor law.


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 the Attorney-at-Law Act). Foreigners familiar with the common law system will only be aware of the terms “lawyer” or “attorney”.  

Those from the UK may be aware of the terms “barrister,” who represents  clients in the higher courts of law, and “solicitor” who mainly provides legal  advice, prepares legal documents. People from the USA and Canada etc., will be familiar with the legal services offered by a Korean attorney-at-law. 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 the Certified Judicial Scriveners Act, 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 under the Civil Execution Act and a public auction under the National Tax Collection Act or other statutes, etc. (Article 2 of the Certified Judicial Scriveners Act). In terms of their duty to prepare documents related to the affairs of a court, they are similar to duties of Solicitor in UK.

3. Certified Public Labor Attorney

According to the Certified Public Labor Attorney Act, a person who has passed a qualification examination for certified public labor attorneys shall be qualified to be a certified public labor attorney (Article 3 of the Certified Public Labor Attorney Act) and be able to a) Act as a representative or agent for notification, application, report, statement, request (including filing complaints, requests for examination and requests for a trial) and remedy of rights etc., made to the authorities under labor-related Acts and subordinate statutes; b) Prepare and confirm all documents under labor-related Acts and subordinate statutes; c) Consult and offer 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 applies; and e) Privately mediate or arbitrate as prescribed in the Labor Union and Labor Relations Adjustment Act (Article 2 of the Certified Public Labor Attorney Act). The public labor attorney is very relevant to execution of public law and the judicial powers of administration under the continental law system.

The concept of certified public attorneys will be unknown to most foreigners in Korea. The term “Public” is in reference to Public Law and since most foreigners in Korea come from places with common law, rather than continental law, they will not know that Korean labor law, which are administrated by the Ministry of Employment and Labor, and the adjudication process of the administrative tribunal (i.e. Labor Commission) requires that plaintiffs are able to provide power of attorney to people who have specialized in the study of labor laws if they want professional legal aid. Further, many foreigners have the greatest difficulty understanding that a Certified Public Labor Attorney is a provides specialized legal services and has dedicated thousands of hours of hard work, and tends to be far more efficient and cost effective in dealing with labor issues in Korea. Many legal consultants from the US mistakenly refer to Korean certified public attorneys as “paralegals”, which indicates their lack of understanding of the basis of the Korean legal system.