*Report on Trial and Detention of Vietnamese Construction Workers in South Korea


The following is a report on the outcome of the trial of 10 Vietnamese migrant workers arrested in relation to their participation in two spontaneous strikes in July 2010 and January 2011. Background on the case is included below the report.


*Charges and Verdict

The defendants were all charged with 'obstruction of business'. Seven of them were also charged with acts of 'group violence' or 'mob assault with a deadly weapon'. All defendants were found 'not guilty' of the charge of 'obstruction of violence'. The not guilty verdict was based on the following legal precedent, quoted in the judge's decision:


“Workers' basic rights, as protected in the Constitution, included the right to association, collective bargaining and collective action (strike) as a means to improve their working conditions. Foreigners, irrespective of nationality, are also subjects of these basic labor rights. When deciding whether a strike, as a job action, constitutes obstruction of business, strict interpretation is necessary so as to ensure that the basic rights described above are not violated.


“As such, it cannot be seen that strikes, as job action, necessarily constitute 'obstruction of business'. Rather, this must be judged after the fact, and only if a review of the specific circumstances shows that the collective refusal of labor provision occurred suddenly at a time that the employer could not predict so as to cause great difficulty to the operation of business, or great losses, and thus impaired the employers' ability to voluntarily continue his/her business can it be considered as constituting the crime of 'obstruction of business' (Supreme Court, 7 March 2011, Refer to sentencing verdict 2007do482, complete panel of judges)."

(This is an unofficial translation.)


The judge found that there was not sufficient evidence to show that the employer had suffered the claimed losses, and thus, the strike could not be seen as constituting 'obstruction of business.


With regards to the other charges, five of the defendants were found guilty, but their sentences were waved or they were given light fines. The judge explicitly explained that more severe sentences that would become grounds for deportation were intentionally avoided. Only two defendants were given suspended prison time sentencessentences severe enough to be grounds for deportation.


The details of the sentencing are as follows:


1. aaaaaa

-obstruction of business: not guilty

-group violences: guilty

-sentence: 2 million won fine, waved sentence of 8 months prison time (not grounds for deportation)


2. bbbbb

-obstruction of business: not guilty

-mob assault with deadly weapon: guilty

-sentence: 2 years prison time, suspended for 3 years (grounds for deportation)


3. ccccc

-obstruction of business; not guilty

-group violence, mom assault with a deadly weapon, mob assault: guilty

-sentence: 1 year 6 months prison time, suspended for 2 years (grounds for deportation)


4. ddddd

-obstruction of business: not guilty


5. eeeee

-obstruction of business: not guilty

-group violence: guilty

-sentence: 2 million won fine (not grounds for deportation)


6. fffff

-obstruction of business: not guilty

-mob assault with a deadly weapon, violence: guilty

-500,000 won fine, waved sentence of 8 months prison time (not grounds for deportation)


7. ggggg

-obstruction of business: not guilty

-mob assault with a deadly weapon: guilty

-sentence: waved sentence of 8 months prison time (not grounds for deportation)


8. hhhhh

-obstruction of business: not guilty

-group violence: guilty

-sentence: 2 million won fine


9. iiiii

-obstruction of business: not guilty


10. jjjjj

-obstruction of business: not guilty


*Detention by Incheon Immigration *

Based on the above verdict, all but two of the defendants should have been released. Instead, only two of the three defendants who received not only guilty verdicts were released. The third continued to be detained by the police because of a prior fine he had not paid. The other defendants were taken by immigration officials to the Incheon Immigration office.


When they arrived at the court, the immigration officials were unclear about whom they should take custody of or what their sentences were. They did not even refer to the judge's decision in deciding whom to detain, but rather just detained all those with guilty verdicts. They did not have the required detention orders. When supports protests, they simply wrote up 'emergency detention orders' for the seven defendants on the spot in such a rushed manner that they mistakenly recording the same date for the start and termination of the detention.


When activists and supporters protested this unfair treatment, the head of the Incheon Immigration Office simply replied with arrogant comments such as, "Our detention center is good, better than other countries. You shouldn't think of detention as imprisonment,and "South Korea's immigration system is of high quality."


This is a clear case of abuse of authorities granted under the Immigration Control Law. The Incheon Immigration Office's is a racist attempt to increase the number of deportations it carries out without regard for the rights of the individuals involved or the presiding judge's intentions.


Labor, civil society and social movement organizations are continuing to call for the workers release and protest the actions of the Immigration Office.


*Background of the Case

Last March and April police arrested and detained 10 Vietnamese migrant workers working in South Korea.

The Prosecutor's Office charged them with several crimes including obstruction of business, group violence, mob assault with a deadly weapon. The prosecution claimed the Vietnamese migrant workers carried out an illegal strike that constituted obstruction of business. In its letter of indictment the prosecution claimed that the workers who were arrested had led the strike and used threats and force to make other workers participate.


All those arrested are documented migrant workers who entered South Korea under the Employment Permit System (EPS). If they are convicted, they are highly likely to face deportation under the Immigration Control Act.


The 10 individuals had been among 200 Vietnamese workers employed to construct the substructure of a container wharf at the Incheon New Port last year.


<Working Conditions>

- KRW 4,110/hour wage (minimum wage).

- 12-hour shifts from 7:00 to 19:00 (Lunch break: 12:00-13:00). The company almost always ran two shifts, one from 7:00 to 19:00 and one from 19:00 to 7:00.

- Work on Saturday and Sunday even though the employment contract stipulated a Monday to Friday work week.

- Only 1 meal a day (lunch) provided free of charge. The cost of breakfast and lunch (KRW 240,000 a month) was deducted from wages. For this reason, the major demand during the strike was the provision of three meals a day. The company offered breakfast and dinner for free from April to May, 2010. But it notified the workers it would offer only lunch for free beginning in July. Many workers who had worked since April staged a walkout and refused to work.


<1st Strike: July 22 to 25, 2010>

Beginning at 7 o’ clock in the morning on the 22th of July, 2010, roughly two hundred Vietnamese workers went on a walkout. The walkout continued until 7 o’ clock in the evening on the 25th of July, 2010.


The workers made the following demands:

- That they be provided three meals a day, free of charge.

- That the not be forced to work at night against their will.

- That they be allowed to have friends visit them in company-provided living quarters.

- That they be allowed to have food, drink and alcohol in their living quarters.


*The company argued that the strike caused losses worth KRW 1 billon. It said it was forced to hired local workers and had to paid extra to rent equipment for an extended period of time.


<2nd Strike: January 9 to 10, 2010>

Most of the Vietnamese workers went on a walkout against beginning on January 9,, 2011. In response, the company changed its policy. It reduced recognized work hours from 12 to 11 hours (The workers worked for 12 hours from 7:00 to 19:00pm, with a lunch break from 12:00 to 1:00pm). The company had previously recognized 12 working hours including 4 hours of overtime work.

*The company argued the second strike caused losses worth KRW 109 million.


The 10 Vietnamese migrants continued to be employed and worked after the strike.

Some of those who were arrested had only begun to work in July 2010. As such, they were not in the condition to lead the first strike.

At a hearing on May 26, the prosecution asked that the workers be given prison sentences of 3 years to 2 of the workers, 1 year and 6 months to 1 worker, 1 year to 6 workers and 1 year suspended for 2 years to 1 worker.


(translated by Lim Wolsan)