Leftists’ Fakery Highlights Importance of Translations and “Official Language”
by Brendon Carr
A frequently-asked question put to me from time to time is Are we required to make this contract in the Korean language? The answer to this question, in almost all cases, is NO. As a general rule, Korean statutes and regulations are completely silent on the question of official language, seemingly because whoever’s drafting the statutes presumes that all parties to a transaction are Koreans capable of using the local language. Homogeneity does have certain advantages, you know. One of them is a certainty that there is a common language shared between the parties.
Formation of a contract requires only that the terms and conditions of agreement between the parties be mutually understood. If both parties read and understand Russian well enough to know what they’re agreeing, then Russian is a language suitable for making a contract.
It seems that in other Asian countries there may be some regulation or local rule (maybe a municipal regulation in some Chinese cities, I really couldn’t say), and that foreign businesspeople are inspired by their experiences elsewhere. Or it could be that crafty locals like to tell credulous foreigners that It’s The Law™ to make the contract in Korean, so that the locals retain control of things through the opacity of their language, which is—to put it mildly—as much a world language as Norwegian, or perhaps Faeroese.
But because there’s no official-language requirement for contracts in Korea, you’re free as a bird to transact in English. In fact, English is a better language for contracting, since its vocabulary is so rich and lends itself to clarity.
(That said, it’s important to remember that for virtually all of the Koreans with whom you’re doing business, English is their second language, one which is of little daily utility, and therefore they’re also working at a disadvantage when transaction with you in English.)
In this regard, I am reminded of recent events in the neverending US beef import protests, whereby Amnesty International inspectors here to investigate allegations of police brutality against protestors (it’s interesting how there are no investigations when it’s the other way around) were hoodwinked by their lying, manipulative local staff who prepared false English-language translations of local-language materials for release to the world. (Remember, for leftists it’s not so much about the truth, but about the Truthiness. Fake but accurate is okay with them.) There is a lesson here for foreign businesses.
The Korean Amnesty staff were working to accomplish a goal: Gaining sympathy for their cause from the “court of international opinion.” The language of that court is English—if materials are in the Korean language, the court of international opinion will be ignorant of anything recorded in that language. In other words, evidence must be in English when presented to the court of international opinion, as if it were a rule of civil procedure. And in general, English speakers are not well-equipped to check the accuracy of the translation.
As it happens, there is an official-language requirement in one place in Korea: The courtroom. Evidence submitted to the court must be in the Korean language. Anything that originally comes from a foreign language must be translated by a party into the Korean language. And here’s where we often see misconduct—parties to litigation often deliver to the court Korean-language translations of foreign-language evidentiary materials which are deliberately (I guess if you want to give the benefit of the doubt you could say with gross negligence) inaccurate and misleading to the judge. That puts the party responding to the evidence at a profound disadvantage, because once translated evidence is offered by one party, it’s natural to suspect the other party’s response is self-servingly fake.
Far better, I say, to have agreed Korean-language translations prepared and existing, as an insurance policy (as well as a simple aid to understanding), at the start of your commercial relationship than to leave the job of rendering a Korean-language version to a party seeking to gain advantage in the court. Contract in English, yes, but spend a little extra money on good translations while the sun is shining.
As a practice point, I note that if you’re going to have two versions of a contract extant, the one which is simply a translation prepared for reference should be clearly marked as such, and both versions should contain a clause indicating which version shall control in the event of conflict or error in terms. And for God’s sake, don’t sign both versions! This has caused too many problems to count.
(Tip o’ the hat to the Marmot’s Hole for linking the original story.)
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Brendon - what’s been getting you down these days? I’ve been noticing measure of negativity/superiority leaking into more and more into your posts.
First, why should Korean statutes and regulations even have to specify an official language? And homogeneity has nothing to do with it - although US is not as homogeneous as Korea, still no need to declare English as the official language (some idiotic attempts to the contrary). Doubt that drafters presume that parties to transactions are Korean or that there is a common language; instead, it’s most probable that it’s a non-issue and rightly so. Are Korean legislators drafting US laws? Franch laws? Just because English is generally accepted as global lnaguage for business (and increasingly, law) doesn’t mean that non-English countries need to account for it at legislative levels. And if a contract is made in Korea and/or to be governed by Korean law, why so unusual to be drafted in Korean? After all, isn’t that part of having local counsel? Certainly, parties can agree otherwise (as you noted, “free as a bird") but your choice of words/phrases in this particular post is suspect. “crafty locals” = less than honest Koreans? “credulous foreigners” = gullible/naive foreigners? “locals retain control...through opacity of their language” = Koreans deliberately made hangul opaque so to confuse foreigners? Oh, please! And was anyone ever stupid enough to contend that hangul was a world language? Would you be equally miffed if French transaction required contract in French? Or perhaps not, because French is a “world language”?
Furthermore, the post’s caption and paragraph re: litigation in Korea are red herrings (and depressing). The misconduct noted by you speaks to the character (or lack thereof) of the PEOPLE involved and not to (1) the fact that Korean (gasp!) is the offical language of the court system, or (2) the opacity of hangul relative to English. Seriously, Seoul is nowhere close to Brussels with its international courts and tribunals. Exactly how would having an “official language” eliminate fake/inaccurate/misleading/wrong translations??? To dumb down the tone of this post, it’s the equivalent of an American tourist walking into a local restaurant in provincial Korean (French, Czech, Italian - take your pick) town and complaining that there’s no English menu. Wonder about ethical considerations among Korean lawyers vs. those for US-admitted attorneys. Bitch about how foreigners are treated like second-class citizens (as if it’s that much different in the US). Speculate as to why majority of Koreans still lack proficiency in English, despite years of study. But stop taking cheap shots re: English vis-a-vis the Korean legal system. Because as you noted, English IS a second language for Koreans and for significant majority of Korea’s population, it has NO daily utility just as lnaguage other than English has no daily utility for an American (although argument could be made for Spanish in some parts of the US). More importantly for you, it makes your bi-lingual skills that much more valuable.
Do I sound pissed? You bet - but also disappointed to read something like this from a person who’s lived/worked in Korea for over 10 yrs. But then again, maybe that’s it? Has cynicism has taken you over, Brendon? (And admitting my own cynicism, why should the story re: ROK’s Amnesty section surprise anyone?)
Hmm. The way I see it, you’re reacting to slights which are not present in this blog entry.
I don’t have any position on official language, and certainly don’t think—or contend—that Korea ought to adopt English as the language of its court system. Why should that happen? Nobody uses the language here—that’s why I study Korean.
Parties to litigation lie. If you don’t want one of the lies to be a twisted representation of your English-language contract, prepare an authorititative Korean-language version of important documents at the commencement of the relationship, before disputes arise. That’s all.
Brendon - you have my sincerest apologies if I miscontrued sentiment of this post. As noted in my original comment, I was disappointed (or maybe “surprised” is more accurate) upon reading it.
Perhaps misunderstanding was due to combination of different but related trains of thought? Take, for example, the post’s caption; given its structure, I read it as follows: Leftists’ Fakery Highlights Importance of (1) Translations and (2) Official Language. I get the translations part and absolutely agree with your practice point re: preparing Korean translations concurrently with English contracts. However, I didn’t get the inclusion of “Official Language” within caption which seemed to imply that fakery could be also avoided by designating an official language. Yes, it’s a very literal reading of the caption but how else to read it? Especially in light of subsequent paragraphs.
And I never thought for a second that you were in any way advocating that English should be the language of Korea’s legal system. That being said, I couldn’t understand why it was necessary to state in 1st paragraph that “whoever’s drafting the statutes presumes that all parties to a transaction are Koreans capable of using the local language”. By implication, almost reads as if drafters are failing to take into account application of statutes to non-Koreans/non-local language speakers and hence, my objections in original comment.
Also, it seemed as if you thought some problems arose from fact that in general, Korean laws had no official language requirement (your 1st paragraph) whereas the court system did (your 8th paragraph). And in between these observations were two paragraphs about the “oops, my bad” of Korean Amnesty staffers (and I won’t even go into personal thoughts on this and entire beef protest BS). But again, perhaps my overall misunderstanding was due to reading different but related items into an unintended whole.
I find that, for the most part, you and I share common viewpoints and given that you’re physically in Seoul, I welcome your posts on current events. So if I read too deeply into this particular one, feel free to say “don’t read all blog entries like a lawyer!”
Now I should finish my lunch and get back to work…
PS...But I did, and still do, take exception with suggestion that “locals retain control of things through the opacity of their language”. Opaque or not, hangul is what it is, and every language - English included - has its quirks (i.e., I still don’t understand use of feminine/masculine designations in some European languages). As you said, the English vocabulary is rich and lends itself to clarity, but such “richness” can also work against clarity sometimes.
There are some statutes which ought to take into account the possibility of international transactions. I do some franchise work, and in that arena there is a well-known probability of an international master franchise or unit franchise agreement. It’s a common question coming from US franchisors whether or not they’re allowed to contract in English. In my opinion, US franchise agreements are in fact too complex for Korean franchisees to read and digest, usually coming in at 25-75(!) pages of material.
For most Korean franchisees, it should be mandatory that a Korean-language translation be provided to them, and the failure of the statute to anticipate the possibility of an international transaction—there is zero mention of international agreements in the Franchise Act—is a notable omission.
The Franchise Act, by the way, also has no recognition of the concept of a “sophisticated franchisee”—a big conglomerate like Cheil Jedang probably doesn’t need to be protected by the same rules applicable to Hong Kil-Dong, man-on-the-street. CJ can afford lawyers, and has staff who read and speak English. For sophisticated franchisees in international transactions the rules can be different, but the Korean Franchise Act makes no accounting for these situations.
As for “crafty locals retaining control though the opacity of their language”, well, I’m dealing with that situation right now in two matters. Some Koreans love to advance the idea to credulous foreigners that It’s The Law™ to do things a certain way. In my experience, any suggestion of It’s The Law™, when verified with counsel, usually turns out to be a “misunderstanding” of the “oops, I lied to you” variety.