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
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
In South Korea, the immigration office may remove or deport from South Korea any person who breached the Immigration Control Act(“ICA”) of South Korea. Any person who is released after receiving a sentence of imprisonment without prison labor or heavier punishment may be deported by the deportation order as well.
When the immigration officer reasonably finds a foreigner falls under the requirements for the deportation and she might run away, the officer can detain her with the approval from the head of immigration office. The duration of detention cannot exceed 10 days, which can be renewed up to 10 more days. During the detention, the officer interviews and decides whether to deport the individual or not.
When the immigration officer decides to deport a foreigner, the officer shall deliver the deportation order to the foreigner and immediately enforce him to leave South Korea. But, when the individual files a claim for refugee protection, the deportation order cannot be executed until the refugee claim is decided by the Korean authority.
Then, how can you appeal the deportation order issued by the Korean immigration office? There are two ways to stop the deportation. First, Continue reading
Q) I filed for divorce in Ontario, Canada. My husband lived in Canada and he was duly served with the court’s documents. I will have a final divorce ruling from Canadian court including child support and alimony order soon. But the issue is he will probably leave Canada and head to South Korea after the ruling is issued. Will the Korean Courts recognize the Canadian court order in order to enforce his performance of child support and alimony payment?
A) There is a case where Korean Supreme Court recognized and approved the Canadian court’s divorce/asset distribution/alimony order. That order was issued from Superior Court of Justice in Ontario.
As a matter of law, Korean court recognizes foreign court’s divorce ruling so far as (i) the foreign court has a jurisdiction over the case in perspective of Korean law, (ii) the defendant was duly served, (iii) the ruling of the foreign court does not violate the social order of South Korea and (iv) there exists a mutual guaranty for recognition of rulings between the two jurisdictions. For the last element, the Korean Supreme Court held that South Korea and Ontario have a mutual guaranty. What is more important here is that the Supreme Court recognized foreign court’s alimony order. Under Korean law, there is no legal concept of alimony in divorce. Therefore, some may argue that as the alimony is not the legal right established in Korea, recognizing foreign court’s alimony ruling in Korea would violate the social order of South Korea. But, Continue reading
It was reported that last month Apple’s South Korean office paid $945 of compensation to a South Korean iPhone user for the breaching of privacy by the controversial iPhone user location tracking. Here is the detail from Reuters.
By the way, some news providers reported that this was the ruling from a Korean district court. I, as a Korean lawyer, think that statement is half right and half wrong. Basically it is true that the court issued a ruling which ordered the Apple Korea to pay $945 to the user. But this was not the formal trial case, but a Request for a Payment Order case. Payment order is much convenient & simplified legal procedures for claimant to get a judgment from the court compared to a formal lawsuit. Once a request filed, the Korean court does not question the debtor (in this case, the Apple Korea) and issue a Payment Order within 2 or 4 weeks (in certain courts, within a few days). This payment order, a sort of ruling, asks the opposing party to choose whether to admit the claim as written on the request or to make an objection. If no objection has been raised from the opposing party within 2 weeks, then Continue reading
We’ve been asked about a criminal charge against an adultery under Korean criminal law quite often. Foreign employees in Korean should be cautious that such an adultery is a crime under Korean law. Here is a real example of such a case where a foreign officer committed an adultery and the company(employer)’s legal concern made them ask for some legal consultation to our law firm regarding the adultery law and criminal law process in Korea.
Q) Mr. XX, who is a head director of our company, committed an adultery and was charged by the Korean prosecutor. He has confessed his guilty and the prosecutor demanded one year’s imprisonment for his crime to the court. If the court finalizes that Mr. XX is guilty, does that mean Mr. XX will be imprisonment for one year or lesser?
A) Finding guilty does not always mean Mr. XX will be imprisoned. The Court may SUSPEND the imprisonment for certain years even though Mr. XX is guilty. The Korean Criminal Act provides that a married person who commits adultery shall be punished by imprisonment for not more than two years. However, the Act also provides the execution of the sentence for an adultery can be Continue reading
Recently, Mr. Wonil Chung, a partner at Chung & Partners, has successfully represented NHS, Inc., an internationally renowned U.S. company which sells skateboards, apparel under various trademarked brand worldwide, in policing their trademark in South Korea. NHS, Inc. and its Korean distributor had found that counterfeits of SantaCruz, one of the NHS, Inc.’s premium brand, had been made and sold in numerous online shopping mall sites in Korea. They requested Mr. Wonil Chung to stop them from selling the counterfeits. Mr. Wonil Chung sent cease and desist letters to the online shopping sites which sold the counterfeits, notifying Continue reading