Judge declines to recognize Korean court’s criminal conviction of businessman

The Superior Court has declined to recognize the Korean court’s criminal judgment that convicted and sentenced to six months in prison a businessman who instituted a lawsuit in 2015 asking the court on Saipan to declare him the sole and true owner of a company that owns the 135-room Hotel Riviera in Finasisu.

In an order issued last Friday, Associate Judge Joseph N. Camacho also denied defendant Globuil Holdings’ motion for summary judgment that seeks dismissal of the lawsuit filed on Saipan by businessman Do Sik Kim against Globuil and Globuil owner Kyung Duk Park.

Camacho ruled that recognizing the Korean court’s criminal judgment would violate the penal law rule as defined by Restatement (Fourth) of the Foreign Relations Law of the U.S.

Camacho found that the subsequent criminal conviction of plaintiff Kim by a Korean appellate court even after an acquittal by a Korean trial court does not comport with the Commonwealth’s heighten protection against double jeopardy and is not compatible with “fundamental principles of fairness” and U.S. public policy.

According to court records, in 2015, Kim, through his then-counsel Michael W. Dotts, instituted a lawsuit against Park and the Korea-based Globuil Holdings.

Kim asked the court to declare him as the sole and true owner of all shares of Changshin Resort Saipan Corp., which allegedly owns Hotel Riviera.

Kim alleged that Park only paid him 50 million Korean Won out of 2.5 billion Korean Won pursuant to their stock purchase agreement executed in 2013.

Kim alleged that despite failure to pay the total amount, Park subsequently sold shares of Hotel Riviera to Globuil Holdings in April 2015.

In December 2016, Kim filed his first amended complaint against defendants Park and Globuil Holdings. Kim alleged that he was the 100% owner of the shares of Hotel Riviera since 2009.

Kim alleged that on Feb. 5, 2013, Kim made an agreement to sell his shares to Park for consideration in the amount of 2.5 billion Korean Won.

According to Kim, Park did not pay the balance of the agreed consideration, and the shares therefore never transferred to Park.

Kim said Park later sold the shares to Globuil Holdings.

Kim had earlier attempted to deal with his dissatisfaction with Park through the criminal justice system in South Korea.

Kim tried to bring a criminal case against Park in Korea by alleging that Kim and Park had made a deal that called for Park to pay consideration in the amount of 4.5 billion Korean won.

Kim alleged in his complaint filed in the Superior Court that the amount is only 2.5 billion Korean Won.

However, instead of proceeding with a criminal case against Park, the Korean authorities brought a criminal case against Kim for having made a false report against Park.

The Korean trial court found Kim not guilty of the charges brought against him. However, after the proceedings at the trial level, the prosecutor appealed the not guilty verdict to the Korean appellate court.

The Korean appellate court then, using only the documentary record, overturned the trial court’s not guilty verdict based on a de novo findings of fact and convicted Kim without a new trial.

De novo means a “new trial” by a different tribunal.

The Korean judicial system sentenced Kim to six months in prison for filing the false report against Park.

Kim served his sentence and the judgment is final.

In May 2018, Globuil Holdings, through counsel Mark Scoggins, filed a motion for summary judgment seeking dismissal of Kim’s lawsuit.

Scoggins argued that the issues raised by Kim in this action have already been litigated in a criminal matter in the Republic of Korea, and, therefore, the issues involved in this case are barred.

In his opposition, Kim, through new counsel Samuel Mok, argued that the penal law rule, which is the common law rule that foreign criminal judgments are not enforceable in courts in the U.S., prohibits the CNMI Superior Court from using the Korean criminal judgment for preclusive purposes.

Mok also argued that the Korean criminal judgment was contrary to U.S. public policy because the Korean justice system violated Kim’s constitutional rights against double jeopardy.

The Superior Court heard the motion on Sept. 25, 2018.

In his ruling issued Friday, Camacho said Globuil Holdings’ interpretation of the penal law rule does not comport with Restatement (Fourth) of the Foreign Relations Law of the U.S. Section 489’s definition of the rule—which prohibits courts in the U.S. from recognizing and enforcing foreign penal judgments.

Camacho said because the Commonwealth courts must treat the restatement of the law as the rules of decision, the CNMI Superior Court must adhere to Section 489’s interpretation of the penal law rule.

“Therefore, the Commonwealth Superior Court cannot recognize the Korean criminal judgment,” Camacho said.

The judge also ruled that the Superior Court finds that the judicial proceedings that rendered the Korean criminal judgment violate public policy and are not compatible with fundamental principles of fairness because it violated Kim’s right against double jeopardy.