Q) This past weekend I was involved in some altercation with a Korean guy at the local bar. I pushed him slightly, but he fell down and broke his wrist. He phoned a police officer and filed a criminal accusation against me. I am an E-2 visa holder. What can I do now to help myself?
A) If you are a first offender and had no other criminal record, I don’t think this case becomes a serious one. However, as you are a foreigner, any conviction could lead to an exit order and an entry ban decision from the Korean immigration office. Under the current rule, if a foreigner is fined more than 5,000,000KRW for any crime in Korea, the immigration office can issue an exit order and a future visa application and extension could be denied. It can also result in an entry ban. Under the rule, the duration of the entry ban is as follows:
- the total amount of fine for the last 1 year exceeds 5,000,000KRW: 1 year
- committed any crime more than 2 times for the last 1 year: 1 year
- the amount of fine is between 5,000,000KRW and 10,000,000KRW: 1 year
- the amount of fine exceeds 10,000,000KRW: 3 years
- sentence of imprisonment for less than 5 years: 5 years
- sentence of imprisonment for 5 or more years: 10 years
This is only a part of the rule. Also, when the crime is related to a DUI and driving without a license, a more lenient rule could be applicable.
That being said, it is very important for you to do whatever you can in order to lower the punishment and, if possible, make the case dropped. You should explain to the Police and the prosecutor your special situation with this immigration issue.
One thing that should be mentioned is that there are many Korean Police officers ignorant of this immigration issue. Some officers simply say “if you admit the accusation, the process will be easier and all you need to do is just pay a small amount of fine. With the fine fully paid, you can go freely and there will be no problem. No immigration problem, either”. However, that is not true. I have seen so many foreigners who believed this and gave up the opportunity to defend themselves. They just wanted to get out of the criminal proceedings as soon as possible, because, as foreigners, they didn’t know what to do and were frightened. But, after a few months from the date they paid fines of 5,000,000KRW, the immigration officer issues exit orders.
I am not saying that there will be nothing you can do to overturn the exit order. You can file an appeal with the administrative court asking for a judicial review of the immigration office’s decision(please check this article for how to appeal). However, the appeal proceedings take time and there is no guarantee that you can win.
Thus, we always advise foreigners to do whatever they can at the criminal investigation and court proceedings level. We have many cases where we successfully persuade the judge to lower the fine by explaining the impact that the amount of fine can give on the foreigner’s immigration status in Korea.
How about just settling with a victim? If a suspect succeeds in making a settlement and the victim cancels the criminal accusation, everything is fine? No, that is not the case. The immigration office has a standpoint that, even if a charge is dropped due to the parties’ settlement, they still consider it as a violation of Korean law and social orders. This is extremely frustrating to foreign suspects because in most settlement cases the suspects pay quite a large amount to the victims. They paid money but they can still be deported. That said, in order to clear every legal issue and risk which can be caused by the very criminal accusation, it is a good idea to hire a Korean attorney and draft a settlement agreement in a way that can be used later with the immigration office as evidence of no violation and no anti-social orders.
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Because of the generality of this update, the information provided herein may or may not reflect the most current legal development at the time of view, nor is it applicable in all situations nor should be acted upon without specific legal advice based on particular situations.