Question) I am a US citizen and have been living with my Korean boy friend for about 3 years in South Korea. We loved each other and agreed to marry, but we were so busy to have the legal process timely done and most importantly we found no need to do that. We’ve just thought each other as husband and wife and so do our friends and families. While living together, he ran an Internet business and made a quite large profits from there. I took care of every housework and sometimes I helped his business work, too. But, recently I found he had cheated on me. I was so shocked and got separated from him. My concern is whether I have any right to the assets accumulated during our cohabitation, like a property division right between divorcing couple.
Answer) Under Korean law, in order to establish the marital relationship, the parties must report their marriage to the government. If the parties live together considering themselves each other’s spouses without reporting the marriage, it is called a de facto marriage. A de facto marriage is not a legal marriage. Thus it is not entitled to the same legal protection as the marriage. But, when it comes to the resolution of the de facto marriage relationship, the Korean law applies almost identical protection to the parties.
First, the Korean law grants the right of property division to each party of the de facto marriage. Any party is entitled to the share of the assets acquired during the relationship pursuant to his or her contribution. Even if the party is solely responsible for the relationship breakdown, the person is still entitled to. Second, a party can seek a consolation money against the other party, if the other party is solely responsible for the relationship breakdown. The amount the party can seek is decided by various Continue reading
Let’s assume you file an action for a money judgment in the US court or any jurisdiction other than South Korea, and the defendant has significant assets located in South Korea. In that case, you might need to consider putting a provisional attachment on those assets in order to prevent the defendant from hiding or liquidating the assets to render the judgement ineffectual. Then this situation entails the following question: can a plaintiff in a foreign proceeding apply for a provisional attachment to the Korean court, while pursuing the proceeding in the merit in foreign jurisdiction?
The answer is yes. The Korean court grants and issues a provisional attachment order per the foreign creditor’s application in support of proceedings which have been or are to be commenced in a place outside of South Korea. It does not require the substantive proceedings are to be connected to South Korea. Further, it does not require the defendant to be the resident of South Korea. It just suffices only if the assets are located in South Korea. That said, for example, the US creditor pursuing an action in New York may apply to the court of South Korea for a freezing order on defendant’s bank account in Korean banks to restraint the defendant from dealing with, or disposing of, the funds.
In this regard, There was a case in Korean court where the provisional attachment order against the Korean stocks was issued by the Seoul Family Court as the security for a judgment soon to be obtained in the court of Virginia, USA. The defendant in the US proceeding, which was a divorce case where the plaintiff seek $6,700,000USD for her share of property division, filed an objection Continue reading
A while ago, we posted an article about the recognition and enforcement of foreign judgment in Korea. One of the hurdles in getting foreign judgment recognized in Korea is to find whether there exists a reciprocity in relation to the enforcement of foreign judgments between the two jurisdictions, i.e. Korea and foreign country where the judgment was issued. Korean court reviews this issue on case by case basis. If the court finds that the foreign jurisdiction’s requirements for the recognition of Korean judgment are similar or not more difficult to be met than the requirements under the Korean law, the court declares the existence of reciprocity. This does not require an actual precedence in the foreign court that a Korean court judgment was recognized. It just means a reasonable possibility that the Korean judgment would be recognized in that foreign jurisdiction. The Korean courts have so far recognized the reciprocity with, among others, California(USA), New York(USA), Texas(USA), Washington(USA), China, Japan and Canada. Then how about Australia?
Back in 1987, the Supreme Court of South Korea rejected the recognition of a judgment from the court of New South Wales, Australia on the ground that there was no reciprocity between the two jurisdictions. At that time, Korean court found that the New South Wales law required the Australian court to review the merit of the foreign judgment in order to recognize it. This was a serious conflict and deviation from the Korean legal stance that the courts should not consider whether the foreign judgment is substantially correct when granting the recognition of a foreign judgment. With this great discrepancy, the Korean court came to rule that the requirement for the recognition of foreign judgment under New South Wales law was much difficult to be met than the Korean law, and, therefore, the reciprocity was not established.
It should be, however, noted that this ruling was rendered before Australia enacted the Foreign Judgments Act 1991 whereby South Korea was identified as one of the countries with which Australia has a reciprocity. Under this new act, Continue reading
Q) My friend was convicted of a crime and sentenced to 1-year probation. It was an accident which happened while he was drunken. After then, the immigration officer ordered him to leave South Korea within a month on the ground of the conviction. He is having an E-2 visa and was married to a Korean national. He has a very good reputation around him and planned to live in Korea permanently. I think it is too harsh for him to leave Korea. Does he have any chance to appeal?
A) At the outset, the deportation order from the immigration office can be overturned by the court based on the theory of misuse of discretionary power. The court has ruled that the decision of the immigration office to deport a foreigner should not only meet the requirements provided by the relevant statute, but also, even though it does, any deportation decision which could do more harm to the foreigner’s individual life than benefits to the public constitutes an abuse of discretion and therefore cannot be sustained.
For example, the court has ruled that a deportation order against the HIV positive personnel is an abuse of discretionary power considering the person’s long-time living base in Korea. Also a deportation order against the person with one and half year jail time sentence with 3 year suspension for the violation of (then-existing) Anticommunist Act was struck down as the court found it an abuse of discretionary power considering his other character evidences and solid living base in Korea. Also there have been many successful appeal cases Continue reading
On December 13, 2012, South Korea acceded to the Convention on the Civil Aspects of International Child Abduction (“Hague Child Abduction Convention”), whereby South Korea became the 89th contracting nation to the convention.
Concluded in October 1980, the Hague Child Abduction Convention is a multilateral treaty aiming at prompt return of wrongfully removed or retained child from one contracting nation to another. Under the Convention, any person or institution claiming that a child has been removed or retained in breach of custody rights may apply to any other contracting nation for assistance in securing the return of the child.
As with the Convention entering into force on March 1, 2013, South Korea enacted a subsequent domestic legislation concerning the implementation of the Convention. Under the new legislation, the foreign spouse who is the citizen of the contracting nation of the Convention can make application to the Minister of Justice of South Korea for the assistance of return of child wrongfully abducted to South Korea. The case asserting the return of the child pursuant to the Convention is under the exclusive jurisdiction of Seoul Family Court. The court may issue a preliminary injunction to maintain the status quo. Also the court may dismiss the application for the return of the child when, among others, it has passed 1 or more years since the abduction and the child has already adjusted herself into the current environment. The person who Continue reading
A U.S. distributor, or an agent, entered into a distributorship contract with Korean supplier (exporter) for certain goods. Of course, the U.S. distributor was thinking to resell the goods in U.S. market for a markup. But the problem broke up after the contract was duly singed and executed. With no reason, Korean supplier suddenly refused to sell the goods and rescinded the contract. Due to this unexpected turmoil by the foreign supplier, the U.S. distributor could not properly perform the reselling deals with the local warehouse stores, which the distributor had thought very lucrative. There would be no doubt that the act of Korean distributor constitutes a breach of distributorship agreement. But, the U.S. distributor did not pay anything, yet. The only loss they encountered was they lost a good deal with 3rd party by reason of the Korean supplier’s breach of contract. Now, the U.S. distributor tries to recover damages and loss of profits from the supplier in Korea which they suffered from the failure of the reselling deal with the local warehouse stores. In this case, can the U.S. distributor prevail in Korean court and under Korean law?
The key legal issue would be whether the Korean supplier knew of the fact that the distributor had completed their negotiation with 3rd party for the resale agreement. According to the ruling from the Supreme Court of South Korea, if the supplier knew of the fact, the supplier is liable for the distributor’s loss relating to failure or non-performance of the resale agreement with 3rd party. By contrast, Continue reading
Q) I have a friend who is living in New York. He is a US Citizen who has resided in New York for several years. His wife is from South Korea, but they have not seen each other since 2009. I don’t believe there is any animosity; he just wants to file for divorce since they are no longer in contact. My friend has not been able to get in contact with her for some time, and her family is unsure of her whereabouts as well. The parties were married in South Korea. My friend has been residing in New York so he can file here for divorce; however I am concerned about having proper service there in Korea, especially since we are unsure of her whereabouts. I believe it may be beneficial for my friend to contact a Korean Attorney. I also need to make sure that his wife did not already file for divorce in South Korea or else us filing her is a duplication of services.
A) If your friend is unable to locate his wife in Korea and concerned about the issue of proper service when filing for divorce in New York, it could be an alternative to file for divorce in Korea. In a case where the plaintiff does not know the whereabouts of the defendant, the Korean court issues a divorce decree in ex parte. But, you have to consult with a New York lawyer in advance regarding whether the Korean divorce decree in ex parte shall be recognized in New York. The same problem will arise when the New York court issues a divorce decree in ex parte, which will not be recognized by the Korean court. Of course, if your friend does not Continue reading