Recently we got a question from a foreigner. She was wondering if she could take any legal action against her Korean ex-employee who harassed her by spreading false information about her and telling the customers not to do a business with her.
From a perspective of Korean Criminal law, currently there is no general legislation on regulating the harassment or stalking. The respective laws have its own regulations on which behavior constitutes a certain crime and what remedies the harassed party is entitled to seek.
Generally speaking, a person who defamed another by publicly alleging facts (false or even true) shall be punished by imprisonment or imprisonment without prison labor for not more than 2 years or by a fine not exceeding five million won according to Criminal Act of South Korea.
Notably, any person who sends out letters or text messages inflicting fear or apprehension to another person repeatedly shall be punished by imprisonment for not more than 1 year or by a fine not exceeding 10 million won according to Act on Promotion of Information and Communication Network Utilization and Information Protection(“APICNUIP”).
Also, when the ex-employee’s act can be interpreted as he interfered with her business by circulating false facts or through fraudulent means, or by the threat of force, it constitutes a crime of interference of business and he shall be punished by imprisonment for not more than five years or by a fine not exceeding fifteen million won(Criminal Act).
In the perspective of civil remedies, she is entitled to seek compensation or damage resulting from the opponent’s unlawful acts. A provisional disposition for prohibition of approach could be granted by the Korean court as well.
So, in a legal standpoint, she shall warn him that he’ll be in a danger of being charged in Korea unless he stops doing that kind of act immediately. In this regard, sending a cease-and-desist letter in the name of a Korean lawyer is strongly recommended. It is not hard to see, in Korea, people stop violating one’s legal right after receiving a lawyer’s warning letter and recognizing illegality of his or her behavior. If he objects to cease his illegal acts, the next step for her is to file a criminal and/or civil complaint to the Korean court. Also please make sure to gather and file every evidence of the person’s illegal act, preparing for possible legal disputes in Korea.
Also if the act at issue does inflict a sexual harassment, it must be look into a special legislation, The Framework Act on Women’s Development, dealing with a sexual harassment in Korea.
Article 3-4 of The Framework Act on Women’s Development defines a “Sexual Harassment” as “sexual comments and behaviors incurring sexual mortification and repugnance, or giving disadvantages in employment for not accepting sexual advances or other request, on the part of employees in public sector, employers, or workers, using their status or job position related to jobs or employment relations, etc.”.
In order to be liable for a sexual harassment, the person does not necessarily have to have a sexual motive or intent. It can be inferred and proved by totality of situation such as the relationship with the person, place and circumstance of the behavior, content of the clear and referred response of the behavior, content and degree of the act, whether the act is ephemeral or short-timed or continual. There must be an act that provokes sexual mortification and repugnance to an average person who are in the similar situation generally, and from that the average person should feel the sexual mortification and repugnance. Therefore, a sexual harassment can not be established not merely for the reason that counterpart felt sexual mortification and repugnancewithout provoking sexual mortification and repugnance to the average person in the similar situation objectively.
Based on this standard, the Supreme Court of South Korea has held that the vice principle of elementary school who recommended a female teachers to serve alcohol to him twice at a dinner party did not commit a sexual harassment considering the nature of the party, relationship between participant, place, and actual intent(2005du6461).
Our office has been successfully represented foreigners in Korea suffering from harassment and stalking taking place in Korea. If you have question relating to the issues addressed in this article, please send your inquiry by clicking here or visit Legal Consultation page. Our Korean licensed lawyers, not a U.S. lawyer residing in Korea, will answer your inquiry.