Blog, Criminal

For foreigners seeking information related to criminal cases, departure orders, or forced deportation, we introduce a complex case where our law firm successfully obtained a court order to cancel a foreigner’s departure order through our exceptional legal expertise.

If you do not know what departure order (출국명령) is, you can first read the following article.

Situation – Client Fined 4 Million Won for a Confirmed Criminal Conviction

When client A visited our law firm, he had already been prosecuted for “indecent act by compulsion (강제추행)” and fined 4,000,000 won. He didn’t appeal, so the punishment was finalized. Initially, he thought paying the fine would resolve everything. However, he sought our firm’s help because he received a departure order from the Korean government due to this criminal case, leaving him alarmed and in need of legal assistance.

Departure Order and Deportation

Foreigners residing in Korea become subject to a departure order if they receive a fine of 3,000,000 KRW or more. Especially in cases of sex crimes, they can be subject to deportation regardless of the fine amount, as these are treated more severely than other criminal cases. Upon receiving a departure order, one must designate a date to voluntarily depart within 30 days. If the offense is serious or if one fails to depart after receiving a departure order without raising any objections, a deportation order is issued.

In this case, the client had already been found guilty, so the administrative lawsuit was not to claim innocence against the plaintiff but to request the ‘cancellation of the departure order’ from Korean Immigration.

Why Are Deportation Orders Hard to Overturn

Administrative lawsuits (행정소송) generally have an extremely low success rate. This is because, in an administrative lawsuit, the opponent is a government agency, and one must prove that a state decision, executed based on law, actually had illegal aspects. It’s tough even for Koreans to win these cases, and it’s even rarer for foreigners to succeed, especially in lawsuits seeking to overturn deportation orders. In fact, upon hearing about the success of this case, a lawyer from another firm commented, “In my 10 years as a lawyer, I’ve never seen a case like this succeed.”

1. Legal Hurdles Faced by Foreigners in Korea

The primary challenge lies in the language barrier, which significantly compounds the issue of legal ignorance. For foreigners, navigating the legal system alone can be overwhelming. Without specialized legal interpreters, it’s challenging to grasp or communicate the intricate nuances of legal proceedings. This underscores the necessity of legal services with skilled interpreters who can effectively advocate on your behalf.

In this case, our client faced several difficulties during his criminal investigation. Unaware of his right to an interpreter in his native language, he was subjected to questioning in a language he was not fluent in. The investigator suggested that a swift confession might result in a mere fine. Eager to expedite the process, our client admitted to actions that didn’t align with his actual memories. 

In reality, fines above a certain amount can be grounds for a deportation order, and in cases of sex crimes, the offense is considered severe enough to warrant deportation. However, our client was completely unaware of these facts until he received the deportation order, so he didn’t even consider taking any action to appeal the fine. During the investigation, however, he felt he had no option other than to trust everything the investigator told him.

2. Why Courts Rarely Overturn Deportation Orders

Another reason this case was so challenging is that courts generally grant the Immigration Office broad discretion in managing foreign nationals’ entry and exit, often ruling in favor of these office. The Supreme Court has ruled in several trials as follows:

• ‘It is inherent in the nature of sovereignty for a nation to have the right to deport undesirable foreign nationals. Thus, foreign nationals cannot be considered to have the same freedom of residence and movement as native citizens’ (Seoul Administrative Court 2011Guhap21430, 2008Guhap44839, 2013Guhap2761, 2013Nu47486, etc.)

• ‘It is reasonable to consider that the state can freely decide which foreigners to judge as undesirable and deport’ (Seoul Administrative Court 2009Guhap44898 judgment)

• ‘The public interest and national security should be given more weight than the potential disadvantages to the individual foreign national.’ (Seoul Administrative Court 2012Guhap12990, 2012Guhap37388, 2009Guhap44898, 2012Guhap1242, 2012Guhap20496, 2011Guhap37367, 2009Guhap30684, 2013Guhap3566)

These precedents indicate that foreign nationals who have been found to have committed criminal acts have limited grounds to argue for their right to remain in Korea. Nevertheless, developing compelling arguments in such challenging circumstances is where a lawyer’s true skills are put to the test.

3. Sex Crime Cases: When Victims Avoid Contact

Also, this case presented another significant challenge. The victim extremely avoided any contact, making it almost impossible to even establish communication, let alone reach an agreement. The client was in a great quandary, as any direct contact with the victim to propose a settlement could be considered secondary victimization. Furthermore, the victim was not only avoiding contact from client A but also refusing any communication from the attorney. 

This lack of communication was particularly problematic because, in criminal cases, reaching a ‘settlement’ with the victim is the most fundamental, important, and heavily weighted factor that courts consider when determining sentencing leniency. 

Despite these seemingly insurmountable obstacles, Seoul Law Group achieved a victory in this case – an outcome so rare it’s said to occur only once in a decade. How was this possible?

How We Achieved the Cancellation of the Departure Order

1. Tailored Service: Knowing Our Clients Inside Out

First, SLG thoroughly analyzed cases where departure orders were cancelled and found common reasons for the cancellations. Accordingly, we first proved that the client did not fall under the category of forced deportation or entry ban subjects. We appealed with specific data that he is not ” A person deemed highly likely to engage in any conduct harming the interests or public security of the Republic of Korea (대한민국의 이익이나 공공의 안전을 해치는 행동을 할 염려가 있다고 인정할 만한 상당한 이유가 있는 사람),” nor ” A person deemed highly likely to engage in any conduct disturbing economic or social order or good morals (경제질서 또는 사회질서를 해치거나 선량한 풍속을 해치는 행동을 할 염려가 있다고 인정할 만한 상당한 이유가 있는 사람).”

We presented in detail the client’s reputation, usual conduct, achievements, grades, etc., and through consultation, we discovered and effectively utilized specific supporting documents. While the client had no idea how to prove his value, our law firm helped gather all the supporting documents that the client himself had never even thought of, increasing persuasiveness.

Additionally, we examined the case from the perspective of national interest by comparing the value of cancelling versus maintaining the departure order. We presented specific data on the value the client could create within Korea and proved that the public interest that could be gained from the departure order was unclear and did not contribute to national interests.

Our approach, drawing on Seoul Law Group’s expertise, is tailored to each case and client. As such, our appeal strategies evolve based on the unique characteristics of each case and client. For the best strategy customized to your specific situation, we recommend booking a consultation via email.

2. Achieving settlement: Affidavit of Non-Prosecution

The second key was obtaining an ‘affidavit of non-prosecution (처벌불원서)’ from the victim, who had not only completely cut off contact but was also actively avoiding all individuals associated with the client. SLG first attempted to persuade friends from the victim’s community several times. Eventually, through sincere conversation with a close acquaintance whom the victim trusted and relied on, we were able to clear up misunderstandings and genuinely convey our client’s position while fully considering the victim’s emotions and circumstances. Ultimately, the victim expressed that they absolutely did not want our client to be deported from Korea, and instead became concerned about and actively advocated for our client’s stance.

It is important to note that this approach should not be hastily imitated, as actions taken by the perpetrator to gain an advantage in the trial can be considered secondary victimization. Perpetrator’s actions such as spreading the fact of damage to others, contacting the victim via SNS or visiting them directly, sending letters, etc., can become factors for increasing the sentence as secondary victimization. This must be approached with extreme caution and should only be attempted carefully through legal experts.

This victory is being hailed as a triumph of legal expertise, as it involved overturning a case that was considered nearly impossible to win. It is the result of Seoul Law Group’s exceptional legal strategy and unwavering dedication.

What If You Had Consulted a Lawyer Sooner?

Nevertheless, what’s extremely regrettable is that had the client sought legal counsel initially, he could have far better exercised his right to defense. With a lawyer’s assistance from the beginning, he could have appealed to various circumstances and potentially pursued a verdict of innocence. However, due to pressure from the investigator, the client ended up leaving a record admitting to actions he hadn’t committed, and due to a lack of legal knowledge, he also missed the appeal deadline. In addition to the settlement money for the victim, he also had to pay hundreds of thousands of won in fines. He would have soon been deported from Korea if he hadn’t contacted SLG.  This situation demonstrates that to protect important legal rights, which require specialized knowledge and field experience beyond what can be understood through internet searches, it is more than cost-effective to consult in-depth with an appropriate lawyer immediately.

Treating the client’s case as if it were our own is another ability of SLG lawyers. In the future, we plan to serialize successful case studies showing how Seoul Law Group has defended clients’ rights in cases that seemed nearly impossible.