Recent reports concerning the restriction on Korean attorneys’ participation in School Violence Countermeasures Review Committee (SSCRB) proceedings raise issues in Korean administrative law and constitutional law: whether limiting an attorney’s presence and participation in quasi-adjudicative disciplinary proceedings violates the right to representation and/or constitutes a procedurally unlawful administrative action.

Reported variations in committee practice – ranging from full Korean attorney participation in some schools to preclusion or speech restrictions in others – demonstrate the absence of unified procedural standards and processes. The Korean Bar Association has noted that changes must occur, and a lawyer in Korea who was demanded to leave the committee hearing filed a lawsuit. We shall update the reader as more becomes known about the issue.

SSCRB & School Disciplinary Proceedings in Korea

While Korean SSCRB proceedings are formally administrative in nature, their function is quasi-judicial. These Korean school committees conduct fact-finding, assess credibility, review evidence, hear statements, and issue determinations that may materially affect a student’s legal and academic status and future. Outcomes may influence disciplinary records, transfers, admissions considerations, and long-term institutional standing.

Where an administrative body in Korea exercises adjudicatory functions affecting a student’s rights and interests, the procedural safeguards applicable under Korean administrative law and constitutional law include, in most cases, meaningful legal representation.

The Korean Administrative Procedure Act permits parties to appoint representatives, including attorneys, who may perform procedural acts on their behalf, such as attending proceedings, submitting evidence, and presenting opinions. The operative legal standard is not mere formal allowance of representation, but effective representation.

Administrative agencies in Korea may adopt procedural rules; however, such rules must remain consistent with statutory authority and general principles of due process. “Internal policy,” in most cases, is not, in itself, a sufficient legal basis to curtail a party’s right to representation in proceedings with adjudicative consequences.

Korean Courts on Exclusion of Lawyers in Korean School Disciplinary Committee and School Violence Proceedings

Judicial precedent in Korea has already addressed comparable procedural defects. In a case adjudicated by the Gwangju District Court (2019 Guhap 10894, February 2020), the court held that a school committee’s decision was procedurally unlawful when the plaintiff’s attorney was required to leave the conference room and permitted only to deliver a final statement. The Korean court reasoned that the plaintiff’s attempt to exercise the right of defense through legal counsel was materially impeded. The court noted that: “the deliberation and decision of the school violence committee was procedurally unlawful because it took place while the plaintiff had attempted to exercise his right to defense through a lawyer but was denied.”

The legal implication is clear: where Korean legal counsel is excluded from core stages of the proceeding, including fact-finding or substantive discussion, the resulting decision may be subject to annulment on procedural grounds.

Right to Defense and Constitutional Considerations

Although Korean SSCRB proceedings are not criminal in nature, they may raise constitutional considerations when they possess punitive characteristics and produce lasting disadvantages. The right to a lawyer in administrative proceedings is grounded in statutory law; however, where restrictions on representation materially impair a party’s ability to defend against allegations, broader due process and, thus, constitutional concerns arise.

The filing of state compensation claims premised on a claim of infringement of the right to counsel reflects an emerging recognition that disciplinary proceedings with quasi-judicial consequences cannot be insulated from judicial review.

Disciplinary determinations issued through procedurally defective processes carry significant downstream consequences. With Korean school violence records increasingly relevant to admissions and institutional evaluation, committee findings may affect a student’s academic future.

School violence cases frequently involve contested facts, digital communications, and subjective interpretation of conduct. The presence of legal counsel during questioning and evidentiary clarification helps to ensure accurate record development, proportional characterization of conduct, and protection against procedural misunderstandings. Excluding counsel during these stages may distort the evidentiary record and undermine the reliability of the committee’s deliberative process.

Note
All matters involving student discipline in universities, high schools, and other educational institutions in Korea carry potential legal, academic, and reputational consequences. Students and guardians should consult qualified legal counsel in Korea at the earliest stage of any disciplinary proceeding to ensure that procedural rights, including the right to representation and defense, are properly preserved.

by Sean Hayes

Sean Hayes has broad experience advising foreign companies, executives, investors, and individuals on Korean legal and regulatory matters. A former law professor in Korea and the first non-Korean to work for the Korean court system, Atty. Hayes has handled a wide range of cross-border issues, including corporate, commercial, labor, regulatory compliance, dispute resolution, and risk management matters involving international clients. He is known for providing practical street-smart advice.

In addition to his legal practice, Mr. Hayes is the primary author of The Korean Law Blog, a widely referenced resource on Korean law for foreign businesses and professionals. Sean regularly advises multinational corporations, entrepreneurs, educational stakeholders, and high-net-worth individuals on complex legal exposure in Korea, with an emphasis on preventive legal structuring, procedural protection, and long-term risk mitigation across multiple sectors.

Sean’s profile may be found at Sean C. Hayes. To schedule a call with Sean Hayes, please click: Schedule a Call with Sean Hayes. Media inquiries welcomed.