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Korea – Standards – Protection – Retaliation

Korea – Standards – Protection – Retaliation

15. (1) No person shall implement any disadvantageous measure against the public interest whistleblower, etc. in retaliation for his/her public interest whistleblowing, etc.

(2) No person shall obstruct the act of the public interest whistleblowing, etc. or force the public interest whistleblower, etc. to rescind his/her case.

19. (1) The Commission, upon receipt of a request for protective measures, shall immediately examine whether the public interest whistleblower, etc. was subjected to disadvantageous measures in retaliation for his/her public interest whistleblowing. In this event, the Commission may notify an examination agency of the fact that the public interest whistleblower, etc. had applied for protective measures.

(2) The Commission may request any person who falls under any of the following Subparagraphs to submit relevant material, if deemed necessary for the examination of the request:

1. The person who requested protective measures (hereinafter referred to as “applicant”);

2. The person who conducted the disadvantageous measures;

3. A reference person;

4. Relevant institutions, relevant organizations, or companies.

(3) The Commission may request persons who fall under Paragraph 2, Subparagraphs 1 through 3 to either appear before the Commission to make an oral statement or to submit a written statement.

(4) The Commission shall provide all relevant parties with sufficient opportunities to vindicate themselves during the processes of examination.

(5) The notified examination agency pursuant to the latter part of Paragraph 1 shall cooperate with the Commission in relation to the examination into the request for protective measures under provisions prescribed by Presidential Decree.

20. (1) In the event that an examination finds the applicant had been subjected to disadvantageous measures (excluding those described in Article 2, Subparagraph 6, Items h and i) for his/her act of public interest whistleblowing, etc., the Commission shall decide to require the person who implemented such disadvantageous measures to take each of the following protective measures within a period of 30 days (hereafter referred to as “decision to take protective measures”). In the event that the examination does not find that the applicant had been subjected to disadvantageous measures as a result of his/her public interest whistleblowing, etc., the Commission shall decide to dismiss the request for protective measures (hereafter referred to as “decision to dismiss”).

1. Measures to recover his/her state of life;

2. Payment of compensation that has been delayed or has been paid discriminately, including interest;

3. The cancellation or prohibition of other disadvantageous measures.

(2) In the event that an examination finds the applicant had been subjected to disadvantageous measures described in Article 2, Subparagraph 6, Items h and i for his/her act of public interest whistleblowing, etc., the Commission may decide to recommend that the person who implemented the disadvantageous measures take the protective measures, within a period of 30 days, necessary to enable a permit, license, contract, etc. to remain in effect (hereafter referred to as “recommendation”).

(3) The decision to reject a request for protective measures under Article 18, the decision to take protective measures and decision to dismiss under Paragraph 1, and the recommendation under Paragraph 2 shall be made in writing, and both the applicant and the person who implemented disadvantageous actions shall be notified of such decisions or recommendations.

(4) In the event of a decision to take protective measures, the Commission may request a relevant disciplinary authority to take disciplinary action against the person who implemented disadvantageous actions against the public interest whistleblower, etc. as a result of his/her public interest whistleblowing, etc.

(5) All necessary matters with regard to the establishment of payment standards and calculation methods for delayed or discriminated compensation, etc. under Paragraph 1, Subparagraph 2 shall be defined by Presidential Decree.

21. (1) The applicant and the person who was found to have implemented disadvantageous measures may file an administrative proceeding, under the conditions as prescribed in the Administrative Litigation Act, against the decision to take protective measures, decision to dismiss or decision to reject within 30 days from the day the notification of such decisions was received.

(2) The decision to take protective measures, decision to reject, or decision to dismiss is confirmed when an administrative proceeding is not filed within the period prescribed in Paragraph 1.

(3) An administrative appeal under the Administrative Appeals Act shall not be filed against a decision to take protective measures, decision to reject or decision to dismiss.

22. (1) A public interest whistleblower, etc. may request the Commission to take measures to prohibit disadvantageous measures in the event that it is highly likely that disadvantageous measures will be implemented in retaliation for his/her public interest whistleblowing, etc. (to include his/her preparations for the public interest whistleblowing such as collecting evidence of a violation of the public interest).

(2) When the Commission receives a request for the prohibition of disadvantageous measures, it shall begin an examination to determine whether the disadvantageous measures that the public interest whistleblower, etc. is likely to face are the result of his/her public interest whistleblowing, etc.

(3) Articles 18, 19 and 20, Paragraphs 1 through 3 shall apply mutatis mutandis to a request for the prohibition of disadvantageous measures.

(4) The Commission shall recommend that a person whom the examination has found to have an intention to implement disadvantageous measures against the public interest whistleblower, etc. for his/her public interest whistleblowing, etc. not implement such measures.

23. Should any of the events described in the following Subparagraphs occur, it shall be presumed that the public interest whistleblower, etc. has been subjected to disadvantageous measures in retaliation for a result of his/her public interest whistleblowing, etc.:

1. In the event that there is an attempt to identify the public interest whistleblower, etc., obstruct his/her public interest whistleblowing, etc. or force him or her to rescind his/her case;

2. In the event that a disadvantageous measure was implemented within two years from the day the public interest whistleblowing, etc. was performed;

3. In the event that disadvantageous measures were implemented even after the recommendation not to implement disadvantageous measures under Article 22, Paragraph 4 was received.

Referenced Legislation: Protection of Public Interest Whistleblowers Act (2011)

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