U.S. Department of State Country Report on Human Rights Practices 2005 - Korea, Republic of
|Publisher||United States Department of State|
|Publication Date||8 March 2006|
|Cite as||United States Department of State, U.S. Department of State Country Report on Human Rights Practices 2005 - Korea, Republic of , 8 March 2006, available at: http://www.refworld.org/docid/4418219020.html [accessed 28 May 2016]|
Released by the Bureau of Democracy, Human Rights, and Labor
March 8, 2006
The Republic of Korea (Korea) is a constitutional democracy governed by a president and a unicameral legislature. The country has a population of approximately 48 million. In December 2002 President Roh Moo-hyun was elected to a five-year term of office. Members of the National Assembly serve four-year terms. In April 2004, in a free and fair election, President Roh's Uri Party obtained a majority 151 of 299 national assembly seats. The civilian authorities generally maintained effective control of the security forces.
The government generally respected the human rights of its citizens; however, there were problems in some areas. The following human rights problems were reported:
- societal discrimination against women
- domestic violence and rape
- child abuse
- trafficking in persons
- societal discrimination against persons with disabilities
- societal discrimination against minorities
RESPECT FOR HUMAN RIGHTS
1. Respect for the Integrity of the Person, Including Freedom From:
a. Arbitrary or Unlawful Deprivation of Life
There were no reports that the government or its agents committed arbitrary or unlawful killings. However, the National Human Rights Commission found that two demonstrators probably died as a result of police violence (see section 2.b.).
There were no reports of politically motivated disappearances.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law prohibits mistreatment of suspects, and officials generally observed this prohibition in practice.
Unlike in previous year, there were no reports of police abuse of persons in custody.
In 2004 the Ministry of Justice implemented several reforms aimed at addressing abuse in prisons. These reforms included the prohibition of facemasks, restrictions on the use of long chains, and limitations on the amount of time an inmate could be kept in solitary confinement.
The government continued to investigate incidents of possible abuse under the country's former military regimes. By year's end the Commission for the Restoration of Honor and Compensation to Activists of the Democratization Movement, established to review cases in which political activists may have been tortured, had reviewed 9,050 cases since 2000 and determined that compensation was due in 540 of them.
There were a number of incidents, including assaults and suicides, related to military hazing. The National Assembly and the Ministry of National Defense were developing countermeasures to improve the working environment of soldiers.
Prison and Detention Center Conditions
Prison conditions generally met international standards, showing significant improvement from previous years, and the government permitted visits by independent human rights observers.
d. Arbitrary Arrest or Detention
The law prohibits arbitrary arrest and detention, and the government generally observed these prohibitions. However, rules regarding arrest and detention under the National Security Law (NSL) are vague. For example, the NSL defines espionage in broad terms and permits the authorities to detain and arrest persons who commit acts viewed as supporting North Korea and therefore deemed dangerous to the country. The NSL permits the imprisonment for up to seven years of anyone who "with the knowledge that he might endanger the existence or security of the state or the basic order of free democracy, praised, encouraged, propagandized for, or sided with the activities of an antistate organization." The legal standard for what constitutes "endangering the security of the State" is vague. Thus, persons could be arrested for the peaceful expression of views that the government considered pro-North Korean or antistate. Between January and August authorities arrested 16 persons for alleged NSL violations.
Because of the vagueness of the NSL and the invocation of classified security threat information regarding the Korean Peninsula, the government was relieved of the burden of proof that any particular speech or action in fact threatens the nation's security.
The UN Human Rights Committee has termed the NSL "a major obstacle to the full realization of the rights enshrined in the International Covenant on Civil and Political Rights." Proposals to annul or substantially revise the NSL were under review in the National Assembly.
Role of the Police and Security Apparatus
The Korean National Police Agency (KNPA) is under the Ministry of Government Administration and Home Affairs. The approximately 93 thousand-member force has a national headquarters in Seoul, 5 special agencies, including the Maritime Police, 13 provincial headquarters, 220 police stations, and 3,389 branch offices. The KNPA was considered well disciplined, and corruption and impunity were not major problems.
Arrest and Detention
The law requires warrants in cases of arrest, detention, seizure, or search, except if a person is apprehended while committing a criminal act or if a judge is not available and the authorities believe that a suspect may destroy evidence or escape capture if not quickly arrested. In such emergency cases, judges must issue arrest warrants within 48 hours after the suspect is apprehended, or within 72 hours if a court is not located in the same county. Police may detain suspects who appear voluntarily for questioning for up to six hours, but must notify the suspects' families. The police generally respected these requirements.
Authorities normally must release an arrested suspect within 20 days unless an indictment is issued. An additional 10 days of detention is allowed in exceptional circumstances. Consequently, detained suspects were a relatively small percentage of the total prison population.
The law provides for the right to representation by an attorney, including during police interrogation. There were no reports of access to legal counsel being denied. There is a bail system, but human rights lawyers said bail generally was not granted for detainees who were charged with committing serious offenses, might attempt to flee or harm a previous victim, or had no fixed address.
There were no reports of political detainees.
On several occasions during the year, the government grants special pardons or reinstatements of civil rights to persons. In August, the government granted a special pardon to 4.22 million persons; while most of the beneficiaries were traffic offenders, the list included 13 politicians who had been convicted of illegal fundraising.
e. Denial of Fair Public Trial
The law provides for an independent judiciary, and the government generally respected this provision in practice. Of the nine justices on the constitutional court, three are appointed by the president, three are elected by the National Assembly, and three are designated by the chief justice of the Supreme Court. Although judges do not receive life appointments, they cannot be fired or transferred for political reasons. The Prosecutor's Office, under the jurisdiction of the Ministry of Justice (MOJ), has shown increased independence and impartiality in recent years. However, in October the prosecutor-general resigned in protest after the justice minister ordered him not to detain an academic who made pro-North Korean remarks in possible violation of the NSL.
Local courts are presided over by judges who render verdicts in all cases. There is no trial by jury. Both defendants and prosecutors can appeal a verdict or a sentence to a district appeals court and to the Supreme Court. Constitutional challenges can be taken to the constitutional court.
The law provides defendants with a number of rights in criminal trials, including the presumption of innocence, protection against self-incrimination, freedom from retroactive laws and double jeopardy, the right to a speedy trial, and the right of appeal. Although the law prohibits double jeopardy, the courts have interpreted this provision to mean that a suspect cannot be indicted or punished more than once for the same crime, while the prosecution can appeal a not guilty verdict or a sentence it considers excessively lenient. A suspect may therefore in fact be tried more than once for the same crime. When a person is detained, the initial trial must be completed within six months of arrest. These rights generally were observed. Trials are open to the public, but a judge may restrict attendance if he believed spectators might disrupt the proceedings.
Judges generally allowed considerable scope for examination of witnesses by both the prosecution and defense. Cases involving national security and criminal matters were tried by the same courts. Although few convictions were overturned, appeals often resulted in reduced sentences. Death sentences were appealed automatically.
It was difficult to estimate the number of political prisoners because it was not clear whether particular persons were arrested for exercising the rights of free speech or association, or were detained for committing acts of violence or espionage. Minganhyup, a nongovernmental organization (NGO), reported that as of September, the government had prosecuted 61 persons for their political beliefs, many of them student members of a pro-North Korea organization. As of August the government had convicted 56 conscientious objectors who failed to report for military service.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The law prohibits such actions, and the government generally respected these prohibitions in practice. Some human rights groups raised concerns about possible government wiretapping abuse. The Anti-Wiretap Law lays out broad conditions under which the government may monitor telephone calls, mail, and other forms of communication for up to two months in criminal investigations and four months in national security cases. The Ministry of Information and Communication said that between January and June, the government conducted 550 cases of wiretapping, down 40 percent from the 917 cases during the same time period in 2004. However, during the first six months of the year, the government requested telecommunication companies and Internet firms to provide personal data for 1.38 million persons, an increase of 128 percent from the same period the previous year.
In July prosecutors indicted two National Intelligence Service (NIS) directors from the Kim Dae-jung administration for illegal wiretapping. The prosecutors concluded their investigation in December, reporting that the NIS illegally eavesdropped on leading political, financial, and media figures during the Kim Young-sam (1993-98) and Kim Dae-jung (1998-2003) administrations.
The government continued to require some released prisoners to report regularly to a probation officer under the Social Surveillance Law.
The NSL forbids citizens from listening to North Korean radio in their homes or reading books published in North Korea if the government determines that the action endangers national security or the basic order of democracy in the country. However, this prohibition was rarely enforced, and the viewing of North Korean satellite telecasts in private homes is legal.
2. Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The law provides for freedom of speech and of the press, and the government generally respected these rights in practice and did not restrict academic freedom. However, under the NSL, the government may limit the expression of ideas that authorities consider Communist or pro-North Korean. Proposals to annul or substantially revise the NSL were still under review in the National Assembly at year's end.
On January 1, the National Assembly passed a law that allows the Fair Trade Commission to impose restrictions on publishers if any one newspaper has more than 30 percent of the market or if three major newspapers have a combined market share of 60 percent or more. The law also requires press owners to report their circulation and advertising revenue to a Press Development Committee. Some newspapers and observers said that the law would open up the media market to a wider variety of viewpoints. Others denounced the law as an unwarranted interference in the freedom and autonomy of publishers and their editors.
The state-owned radio and television network maintained a considerable degree of editorial independence in its news coverage.
The government blocked violent and sexually explicit Web sites and required site operators to rate their site as harmful or not harmful to youth. The government also blocked North Korean Web sites. In March the Information Communication Ethics Committee ordered a major domestic Internet portal site to shut down what it considered to be overly pro-Japanese online communities. The government also blocked the sale of video games that featured North Korea in a negative way.
There were no government restrictions on academic freedom. Unlike in previous years, there were no reports of police informants posted on university campuses.
b. Freedom of Peaceful Assembly and Association
Freedom of Assembly
The law provides for freedom of assembly and association, and the government generally respected these rights in practice. The Law on Assembly and Demonstrations prohibits assemblies that are considered likely to undermine public order. The law requires that the police be notified in advance of demonstrations of all types, including political rallies. The police must notify organizers if they consider an event impermissible under this law; however, police routinely approved demonstrations.
During the year demonstrators on several occasions used steel bars, rocks, and other weapons to attack police. Violence erupted in demonstrations involving labor disputes, trade issues, US Forces Korea base consolidation, and the presence of a statue honoring US General Douglas MacArthur. The National Human Rights Commission found that two demonstrators probably died as a result of police violence, and the president apologized for the incident in a nationally publicized address. The protesters had participated in a November 15 farmers' rally during which demonstrators armed with wooden sticks and fire bombs clashed with police armed with batons and plastic shields. One demonstrator died on November 21, and the other died on December 15.
Freedom of Association
The law provides for freedom of association, and the government generally respected this right in practice. Associations operated freely, except those deemed by the government to be seeking to overthrow the government.
c. Freedom of Religion
The law provides for freedom of religion, and the government generally respected this right in practice.
Societal Abuses and Discrimination
The small Jewish population was comprised almost entirely of expatriates. There were no reports of anti-Semitic acts.
For a more detailed discussion, see the 2005 International Religious Freedom Report.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
Most citizens could move freely throughout the country; however, police had discretion to restrict the movement of some former prisoners. While foreign travel generally was unrestricted, the government must approve travel to North Korea. Travelers going to places other than Kaesong or Mt. Geumgang must receive a briefing from the Ministry of Unification prior to departure and demonstrate that their trip does not have a political purpose and is not undertaken to praise North Korea or criticize the government. During the year the government continued to promote the expansion of North-South government, economic, cultural, and tourism-related contacts. Unlike in previous years, there were no cases of travelers to North Korea being subjected to arrest for not obtaining government permission prior to their departure.
Protection of Refugees
The country is a party to the 1951 Convention relating to the Status of Refugees and its 1967 protocol, and the government cooperated with the office of the UN High Commissioner for Refugees (UNHCR) and other humanitarian organizations in assisting refugees and asylum seekers. In practice the government provided protection against refoulement, the return of persons to a country where they feared persecution; however, the government did not routinely grant refugee status or asylum. Government guidelines provide for offering temporary refuge in the case of a mass influx of asylum seekers and an alternative form of protection, a renewable, short-term permit, to those that met a broader definition of "refugee." Between January and August the government received 326 refugee applications (not including North Koreans), a sharp increase from previous years. Between July 1994, when the government first accepted applications, and August, the government approved 39 of 724 applications. The government worked with UNHCR to streamline its refugee processing process, which required 2-tiered meetings of 12 governmental and nongovernmental council members and normally took from 2 to 3 years. Unlike in previous years, there were no reports that asylum seekers were not well counseled on their rights or of other improper actions.
The government continued its longstanding policy of accepting refugees from North Korea, who are entitled to citizenship in the ROK. The government resettled 1,386 North Koreans during the year, resulting in a total population of 7,690 former North Koreans in the country.
3. Respect for Political Rights: The Right of Citizens to Change Their Government
The law provides citizens with the right to change their government peacefully, and citizens exercise this right in practice through periodic, free, and fair elections held on the basis of universal suffrage for all citizens 20 years of age or older. Elections are held by secret ballot.
The law provides for the direct election of the president to a single five-year term; the president may not stand for re-election. Representatives to the National Assembly are elected under a dual system of direct and proportional representation. Voters cast one vote for a candidate from their electoral district and a separate vote for a party; the percentage of votes for each party determines the number of that party's candidates who are elected as proportional representatives. National assembly members serve terms of four years and are not subject to a term limit.
Elections and Political Participation
A free and fair national assembly election was held in April 2004. After April and October by-elections, the ruling Uri Party lost its majority but retained a plurality of 144 of 299 seats in the National Assembly.
In general elections, 50 percent of each party's candidates on the proportional ballot must be women while 30 percent of each party's geographical candidates must be women. As a result, in the 2004 elections 39 women were elected to the 299-seat legislature. At year's end 3 of the 19 National Assembly committees were chaired by women. In the Supreme Court, 1 of 14 justices was a woman, and in the cabinet 1 of 19 ministers was a woman.
Government Corruption and Transparency
On taking office, President Roh encouraged prosecutors to investigate political parties and politicians for corruption. Several investigations involved his close aides.
The country has a Freedom of Information Act, which went into effect in 1998.
4. Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
A wide variety of domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases. Government officials were cooperative and responsive to their views.
5. Discrimination, Societal Abuses, and Trafficking in Persons
The law forbids discrimination on the basis of gender, religion, disability, age, social status, regional origin, national origin, ethnic origin, physical condition or appearance, marital status, pregnancy and child delivery, family status, race, skin color, thought or political opinion, record of any crime for which punishment has been fulfilled, sexual orientation or medical history, and the government generally respected these provisions. However, traditional attitudes limited opportunities for women, persons with disabilities, and ethnic minorities. While courts have jurisdiction to decide discrimination claims, many of these cases were instead handled by the National Human Rights Commission.
Violence against women remained a problem. Between January and August, the Ministry of Justice registered 10,227 cases of domestic violence and prosecuted 1,114 cases. The Korea Women's Hot line estimated in February that domestic violence occurred in 30 percent of households. The Special Act on the Punishment of Domestic Violence defines domestic violence as a serious crime and enables authorities to order offenders to stay away from victims for up to six months. Offenders may also be placed on probation or ordered to see court-designated counselors. The law also requires police to respond immediately to reports of domestic violence. The government has established some shelters for battered women and has increased the number of childcare facilities, giving women in abusive situations more options. However, women's rights groups said these measures fell far short of effectively dealing with the problem.
In March the National Assembly eliminated the household registration system that had made women legally subordinate to the male family head. The reforms also allowed remarried women to change their children's family name to their new husband's name and ended the six-month waiting period to remarry that was directed only at women. The family law permits women to head a household, recognizes a wife's right to a portion of the couple's property, and allows a woman to maintain greater contact with her children after a divorce. Although the law helped abused women who chose to divorce, the stigma of divorce remained strong, and there was little government or private assistance for divorced women. These factors, plus the fact that divorced women had limited employment opportunities and had difficulty remarrying, led some women to stay in abusive situations. However, according to a ministry of health and welfare report, 47.4 percent of marriages end in divorce.
Rape remained a serious problem. Between January and August, there were 6,220 reported cases of rape and 2,433 prosecutions. Many rapes were believed to have gone unreported because of the stigma associated with being raped. The activities of a number of women's groups increased awareness of the importance of reporting and prosecuting rapes, as well as of offenses such as sexual harassment in the workplace. According to women's rights groups, cases involving sexual harassment or rape frequently went unprosecuted, and perpetrators of sex crimes, if convicted, often received light sentences. The penalty for rape is three years' imprisonment; if a weapon is used or two or more persons commit the rape, punishment may be a maximum of life imprisonment.
Prostitution is illegal but widespread. In 2004 the government passed sweeping antiprostitution and antitrafficking legislation that provided protection for the victims of prostitution and enhanced punishment for those engaged in prostitution. Some NGOs also expressed concern that sex tourism to China and Southeast Asia was becoming more prevalent.
The law defines sexual harassment as a form of gender discrimination. The Gender Discrimination Prevention and Relief Act covers almost all kinds of human relations – including, for example, relations between teachers and students, citizens and civil servants. Nevertheless, sexual harassment continued to be a problem. In June 2004 a poll found that 18.4 percent of working women experienced sexual harassment.
During the year the number of women in the workplace reached 43 percent, and women were making clear inroads in some areas. For example, 32 percent of the persons passing the legal services examination, through which judges and prosecutors are appointed and attorneys licensed, were women, up from 24 percent in 2004. However, relative to other developed countries, few women worked in managerial positions or earned more than a median income, and gender discrimination in the workplace remained a problem. According to the Korea Women's Development Institute, the average working woman earned 63 percent of what a man made in a comparable job. The Equal Employment Act penalizes companies found to discriminate against women in hiring and promotions. A company found guilty of practicing sexual discrimination could be fined up to $4,399(5 million won) and have its name published in the newspaper. The law also provides for a public fund to support victims in seeking legal redress. Nevertheless, some government agencies' preferential hiring of applicants with military service (nearly always men) perpetuated legal barriers against women, despite a constitutional court ruling that such preferential hiring was unconstitutional.
Women had full access to education, and social mores and attitudes were improving gradually. For example, the major political parties made more efforts to recruit women, and an increasing number of women occupied key party positions, including chairperson of the main opposition party.
The government demonstrated its commitment to children's rights and welfare through public education. The government provided high-quality elementary education to all children free of charge. Education is compulsory through the age of 15, and most children obtained a good secondary education. High-quality health care was widely available to children.
By August 619 cases of child abuse had been reported to the government. In June the Ministry of Health and Welfare increased requirements for child abuse reporting. In the past child abuse reporting was limited to employees of welfare institutes, teachers, medical professionals, and social workers. The new measure includes lawyers, private institute instructors, and kindergarten teachers.
The Youth Protection Law provides for prison terms of up to three years or a fine of up to $17,680 (20 million won) for owners of entertainment establishments who hire persons under the age of 19. The Commission on Youth Protection also expanded the definition of "entertainment establishment" to include facilities, such as restaurants and cafes, where children were hired illegally as prostitutes. The Juvenile Sexual Protection Act establishes a maximum sentence of 25 years' imprisonment for the brokerage and sale of the sexual services of persons younger than 19 years of age. It also establishes prison terms for persons convicted of the purchase of sexual services of youth under the age of 19 (see section 5, Trafficking). Based on this law, the commission publicized the names of those who had committed sex offenses against minors. The National Youth Commission said in July that Korean fishermen were greatly responsible for the commercial sexual exploitation of children in Kiribati.
With a birthrate of 1.08 boys for every girl, the traditional preference for male children continued. Although the law bans fetal testing except in cases in which a woman's life is in danger, hereditary disease could be transmitted, or in cases of rape or incest, such testing and the subsequent abortion of female fetuses frequently occurred. The government continued an education campaign aimed at eradicating gender-preference abortions, which are already prohibited by law.
Trafficking in Persons
The law prohibits trafficking in persons; nevertheless, the country was a country of origin, transit, and destination. As a country of origin, women were trafficked primarily for sexual exploitation to the United States, sometimes through Canada and Mexico, as well as to other Western countries and Japan. Relatively small numbers of economic migrants, seeking opportunities abroad, were believed to have become victims of trafficking as well.
In 2004 the country implemented two new significant and sweeping laws against prostitution and human trafficking. The laws toughened penalties and provided for enhanced services and protections for victims of the sex trade. The government also launched a public awareness campaign, a victim support hot line, and a reward system for information leading to the arrest of traffickers. The Juvenile Sexual Protection Act imposes lengthy prison terms for persons convicted of sexual crimes against minors (see section 5, Children). The KNPA and the MOJ were principally responsible for enforcing these laws. While many credit the laws with increasing societal awareness of prostitution as a crime, some observers believe the new laws were not being enforced to their fullest potential. No laws specifically address sex tourism.
The country was a major transit point for alien smugglers, including traffickers of primarily Asian women for the sex trade and domestic servitude. Women from many countries, but primarily from China, were trafficked through the country to the United States and many other parts of the world. There were reports of the falsification of government documents by travel agencies; many cases involved the trafficking or smuggling of Chinese citizens to Western countries. In addition to trafficking by air, transit traffic occurred in the country's territorial waterways by ship.
Women from Russia, other countries of the former Soviet Union, China, the Philippines, and other Southeast Asian countries were trafficked to the country for sexual exploitation. They were recruited personally or answered advertisements and were flown to Korea, often with entertainer or tourist visas. As of August the government had issued 4,551 entertainer visas. Once in the country, employers in some instances held victims' passports. The government has restricted issuance of certain types of entertainer visas. There was no credible evidence that officials were involved in trafficking.
The government developed a network of shelters and programs to assist victims. As of August, 449 Korean women were housed in 35 shelters and 9 foreign women were in 2 shelters. Victims were also eligible for medical, legal, vocational, and social support services. Many of these services were provided in conjunction with NGOs. The Ministry of Justice in August introduced a program to educate male offenders about the antiprostitution and antitrafficking laws. As of October, 902 men had participated.
Persons with Disabilities
Discrimination against persons with disabilities in employment, education, or the provision of other state services is illegal. The law states, "No one shall be discriminated against in all areas of political, economic, social, and cultural life on the grounds of disability." The government took measures to increase opportunities and access for persons with disabilities. Although many public facilities remained inadequate, most Seoul sidewalks were designed to alert the sight impaired, intersections had audible cross-signals, and nearly all subway stations were equipped with elevators, wheelchair lifts, or both.
Firms with more than 300 employees are required by law either to hire persons with disabilities or pay a fine. Nevertheless, the hiring of persons with disabilities remained significantly below target levels. Persons with disabilities made up less than 1 percent of the work force.
During the year the Ministry of Health and Welfare increased the amount of products produced by disabled persons that must be purchased by public agencies.
Many persons with disabilities lived in group facilities or rehabilitation centers, where there have been periodic reports of physical and sexual abuse.
The country is racially homogeneous, with no sizable populations of ethnic minorities. However, international marriages were becoming increasingly common. During the year approximately 10 percent of marriages were with foreigners, many the result of brokered marriages between Korean men and women from China, Vietnam, and the Philippines. According to government statistics published in February, there were 60,214 foreign spouses residing in Korea. Except in cases of naturalization, citizenship is based on parentage, not place of birth, and persons must show their family genealogy as proof of citizenship. Naturalization is a difficult process requiring detailed applications, a long waiting period, and a series of investigations and examinations. Because of the difficulty of establishing Korean citizenship, those not ethnically Korean remained "foreign," thus disqualifying them legally from entering the civil service and, in practice, being hired by some major corporations. Foreign workers continued to report difficult working conditions. Some complained of excessively aggressive police crackdowns on illegal migrants. Amerasians faced no legal discrimination, and informal discrimination appeared to be on the decline.
Other Societal Abuses and Discrimination
Age discrimination continued to be a problem. A Korean labor institute study in April of one thousand companies found that there was only a 33.7 percent chance that a company would hire someone over 50 if a comparable younger person applied for the same job.
Researchers estimated that the country has approximately eight thousand persons with HIV or AIDS. The AIDS Prevention Act, enacted in 1987, ensures the confidentiality of persons with HIV/AIDS and protects individuals from discrimination. The government supports rehabilitation programs and shelters run by private groups and subsidizes medical expenses from the initial diagnosis. The government operates a Web site with HIV/AIDS information and a telephone counseling service. Some observers claim that persons with HIV/AIDs suffer from severe societal discrimination and social isolation.
6. Worker Rights
a. The Right of Association
The law provides workers, except public officials, with the right to associate freely. Since 1999 most government employees have been able to form bargaining units and negotiate with management, but have been unable to strike.
Labor law changes authorized the formation of competing unions starting in 2002, but implementation was postponed until 2006 by mutual agreement among members of the Tripartite Commission, which was created to include representatives of government, labor, and management (see section 6.b.).
The ratio of organized labor in the entire population of wage earners was approximately 11 percent, or 1.5 million unionists from a total of 14 million workers. The country has 2 national labor federations, the Korean Confederation of Trade Unions (KCTU) and the Federation of Korean Trade Unions (FKTU), and an estimated 1,600 labor unions. The FKTU and the KCTU were affiliated with the International Confederation of Free Trade Unions (ICFTU). Most of the FKTU's constituent unions maintained affiliations with global union federations, as did the KCTU Metalworkers Council. In protest of government policies perceived to be antilabor, the FKTU and KCTU have withdrawn from the Tripartite Commission. The FKTU and KCTU also announced that they intended to boycott an International Labor Organization (ILO) meeting scheduled to be held in the country during the year. As a result, the ILO postponed the event.
The government recognized a range of other labor federations, including independent white-collar federations representing hospital workers, journalists, and office workers at construction firms and at government research institutes. Labor federations not formally recognized by the Labor Ministry have generally operated without government interference.
In September 2004 the ICFTU found that parts of the labor law violated freedom of association principles, notably with regard to the absence of union rights for many public servants and the intervention by the state in international trade union affairs.
b. The Right to Organize and Bargain Collectively
The law provides for the workers' right to collective bargaining and collective action, and workers exercised these rights in practice. This law also empowers workers to file complaints of unfair labor practices against employers who interfere with union organizing or who discriminate against union members. Employers found guilty of unfair practices can be required to reinstate workers fired for union activities. However, forced reinstatement has been used less frequently because employers have taken extra precautions when laying off union members.
Unions engaged in collective bargaining. Although government employees (except for certain blue collar public officials) are not granted the right to organize and bargain collectively, they have established public official "workplace associations," which may make recommendations but may not engage in collective bargaining.
Under the Trade Union and Labor Relations Adjustment Act, unions must submit a request for mediation to the Labor Relations Commission before a strike. In most cases, the mediation must be completed within 10 days; in the case of essential services, within 15 days. Once a dispute is referred to arbitration, industrial action is prohibited. Management can initiate criminal proceedings against an illegal strike. Arrest warrants can be issued against union leaders, and striking workers can be removed by police from the premises and prosecuted, along with union leaders, and sentenced under the penal code for "obstruction to business." Labor laws prohibit retribution against workers who have conducted a legal strike and allow workers to file complaints of unfair labor practices against employers.
On March 18, the Ulsan Local Union and 58 subcontractors of SK Petrochemicals began an illegal strike. On April 8, during a violent demonstration in front of Ulsan City Hall, police arrested 825 unionists. Both police and unionists suffered injuries. All were subsequently released.
Strikes are prohibited for most government officials and for those who produce mainly defense goods. A total of 228 strikes occurred between January and August, with 105,577 participating workers. During the same period in 2004, 148,561 persons participated in 371 strikes. By law unions in enterprises determined to be of "essential public interest" – including railways, utilities, public health, the Bank of Korea, and telecommunications – can be ordered to submit to government-ordered arbitration. The government took this step to end an airline pilots strike that threatened serious economic disruption during the busy summer vacation season.
There is no independent system of labor courts. Semijudicial agencies such as the Central and Local Labor Relation Commissions mediate or arbitrate labor disputes based on the Trade Union and Labor Relation Adjustment Act. Each commission is composed of equal numbers of representatives of labor and management, plus neutral experts who represent the "public interest." The Labor Relations Commission can decide on remedial measures in cases involving unfair labor practices and can mediate or arbitrate labor disputes in sectors deemed essential to public welfare.
The government originally designated enterprises in the two export processing zones (EPZs) as public interest enterprises. Workers in these enterprises gradually were given the rights enjoyed by workers in other sectors of the economy; however, foreign companies are exempt from many of these labor standards. Foreign-invested enterprises located in free economic zones are exempt from articles 54, 57, and 71 of the Labor Standards Act, which mandate monthly leave, paid holidays, and menstruation leave for women; article 31 of the Honorable Treatment and Support of Persons of Distinguished Services to the State Act, which gives preferential treatment to patriots, veterans, and their families; article 24 of the Employment Promotion and Vocational Rehabilitation of Disabled Persons Act, which obligates companies with more than 300 persons to recruit persons with disabilities for at least 2 percent of its workforce; article 12 of the Employment Promotion for the Aged Act, which encourages companies to reserve 3 percent of their workforce for workers over 55 years of age; and articles 4 and 12 of the Act on the Protection of the Business Sphere of Small and Medium Enterprises and Promotion of Their Cooperation, which restrict large companies from participating in certain business categories. Labor organizations are permitted in EPZs.
c. Prohibition of Forced or Compulsory Labor
The law prohibits forced or compulsory labor, including by children, and there were no reports that such practices occurred. The constitution provides that no person shall be punished, placed under preventive restrictions, or subjected to involuntary labor, except as provided by law and through lawful procedures.
d. Prohibition of Child Labor and Minimum Age for Employment
The labor standards law prohibits the employment of persons under age 15 without a special employment certificate from the Labor Ministry. Because education is compulsory through middle school (approximately age 15), few special employment certificates were issued for full-time employment. To obtain employment, children under age 18 must obtain written approval from either parents or guardians. Employers can require minors to work only a limited number of overtime hours and are prohibited from employing them at night without special permission from the Labor Ministry. These regulations were enforced through regular inspections, and child labor was not considered a problem.
e. Acceptable Conditions of Work
The minimum wage is reviewed annually. As of September the minimum wage was $2.92 (3,100 won) per hour, $23.38 (24,800 won) per day. The FKTU and other labor organizations asserted that the existing minimum wage did not meet the basic requirements of urban workers. According to the Ministry of Health and Welfare, 1.5 million persons (3 percent of the population) lived below the poverty level. Another 3.2 million persons were classified as living in "potential extreme poverty."
As of July 2004, the 5-day workweek system was adopted for employees of large conglomerates, publicly owned companies, banks, and insurance companies with 1 thousand registered workers or more, reducing working hours to 40 hours a week. Companies with more than 300 employees adopted the shortened workweek in July. Labor laws mandate a 24-hour rest period each week. Labor laws also provide for a flexible hours system, under which employers can require laborers to work up to 44 hours during certain weeks without paying overtime, so long as average weekly hours for any given 2-week period do not exceed 40 hours. If a union agrees to a further loosening of the rules, management may ask employees to work up to 56 hours in a given week. Workers may not be required to work more than 12 hours per working day. Unions claimed that the government did not enforce adequately the maximum workweek provisions at small companies. The amended labor standards law also provides for a higher wage for overtime. However, the overtime premium was scheduled to be reduced from 150 percent of the base wage to 125 percent concurrent with the reduction in weekly working hours.
As of August there were 40,718 foreigners, mostly from China, Bangladesh, Mongolia, the Philippines, Thailand, Nepal, Vietnam, Indonesia, Sri Lanka, and Pakistan, working legally in the country. They often faced difficult working conditions and sometimes complained of unduly aggressive police crackdowns. The government continued its crackdown on illegal foreign labor.
The government continued to implement its new work permit system designed to increase protections for foreign workers while easing the labor shortage in manufacturing businesses. Under the new system, permit holders may work in certain industries only and have limited job mobility but generally enjoy the same rights and privileges, including the right to organize, enjoyed by domestic workers. In March the government introduced a requirement that the workers must pass a language test demonstrating some proficiency in the Korean language. By August, 14,800 workers had entered the country through the new system. The Industrial Trainee System, an often-criticized system through which foreign workers may work for two years following one year of training, was still in place.
Foreign workers working as language teachers continued to complain that the language institutes for which they worked frequently violated employment contracts.
Contract and other "nonregular" workers accounted for a substantial portion of the workforce. According to the government, there were approximately 5.48 million nonregular workers, approximately 36 percent of the workforce. Labor unions and other groups believed that the percentage might have been much higher. In general nonregular workers performed work similar to regular workers but received approximately 60 percent of the wages. Further, most were ineligible for national health and unemployment insurance and other benefits. In November the ICFTU secretary general met with the prime minister to urge the government to stop the exploitation of irregular workers.
The Korea Occupational Safety and Health Agency is responsible for implementing industrial accident prevention activities. The government set health and safety standards, but the accident rate was high by international standards. In 2004 there were 2,825 fatalities related to industrial accidents. The government introduced a plan to publicize and impose sanctions on work places that had a high rate of accidents. In July the Ministry of Labor said that construction companies with high accident rates would be restricted from bidding for government projects. According to the Korea Occupational Safety and Health Act, an employer may not dismiss or otherwise disadvantage an employee who interrupts work and takes shelter because of an urgent hazard that could lead to an industrial accident.