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 factors such as duration of relationship, the extent of hardship the party suffered and so on.

Interesting thing about the resolution of de facto marriage is, unlike a divorce, it does not require a justifiable cause for the resolution to take effective.  This means a party can unilaterally terminate the de facto marriage without any cause.  But, if he or she terminates de facto marriage without cause, the party is liable for the consolation money to the other party.

Then, when does a de facto marriage exist? The court’s recognition of de facto marriage is subject to the finding of both (i) mutual intent to form a marital relationship, and (ii) existence of substance of marital life.  For this purpose, the court looks into various facts such as the duration of cohabitation, existence of marriage ceremony, relationship with other family members, etc.

Let’s get back to the question.  The questioner lived with Korean national in Korea for 3 years considering themselves as each others spouses.  The friends and family members perceived and treated them as a married couple.  It is not clear whether they had a marriage ceremony but it is not a crucial factor in determining the formation of de facto marriage. Thus, it can be said she is a de facto spouse under Korean law.

As she is a de facto spouse, she is entitled to her contributory share of the assets acquired during the relationship.  In this case, the boy friend’s earnings from the Internet business shall be the object of assets distribution, as they were acquired during the relationship.  It is, however, hard to predict how much share she can claim for her contributory share due to lack of detailed information.  Assuming she took every care of the housework and even supported her partner’s business, the attributable share would be around 40 percent of the net assets. Furthermore, assuming her partner’s cheating was the sole cause for the relationship breakdown, she is entitled to the consolation money as well.

If you have any question about this article, please visit our Legal Consultation center or send your inquiry email by clicking here.  Our Korean licensed lawyer, not a U.S. lawyer residing in Korea, will answer your inquiry.

© 2013 Chung & Partners, a Korean Law Firm. All rights reserved.

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 to the Seoul Family Court, alleging the Korean court should have not issued the order as the proceeding on the merits was not based in South Korea.  The Court, however, dismissed the objection and held that the provisional attachment was duly issued.  The court reasoned, among others, as the foreign judgement can be recognized and enforced in Korean legal system when it complies with the statutory requirements under the Civl Procedure Act and Code of Civil Execution, it cannot find any reason to treat the foreign proceedings on the merit differently from the domestic one.

The interesting part of this ruling is the court did not require the plaintiff to prove the possibility whether the foreign judgment to be obtained meets the statutory requirements for the recognition and enforcement of foreign judgment under Korean law. The court held that, as the provisional attachment is considered and issued in mere preliminary stage of the litigation, it is unreasonable to require the plaintiff to prove the possibility of recognition of the judgment which is not initiated or just in pending. The court said this issue shall be reviewed at the stage when the plaintiff files an application for the execution judgment to enforce the foreign judgment in Korea. If the Korean court finds the foreign conclusive judgment does not meet the statutory requirements of enforcement, then the previously issued provisional attachment order shall become void along with the application for the execution judgment denied.

If you have any question about provisional attachment or any other preliminary remedies in South Korea, please send your inquiry to Mr. Wonil Chung by clicking here.

© 2013 Wonil Chung. All rights reserved.

Because of the generality of this update, the information provided herein may or may not reflect the most current legal development at the time of view, nor is it applicable in all situations nor should be acted upon without specific legal advice based on particular situations. 

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, South Korean judgment came to be recognized in Australia with much simpler and non-merit based requirements.  There has been no Supreme Court’s ruling since this new legislation.  But, as the current Australian law does not require a merit-based review any more in recognizing a Korean judgment, it is generally accepted in Korean legal society that the Korean court will find the reciprocity between Korea and Australia and, therefore, recognize the ruling from Australian court.  Of course, in order to get recognized in Korea, the Australian judgment must meet other requirements under Korean law, i.e. (i) it must be the final judgment on the merit, (ii) the Australian court had a jurisdiction, (iii) the defendant was duly served, and (iv) it does not violate the public policy of South Korea.

After the Australian money  judgment has been recognized in Korea, the judgment creditor can avail itself of every enforcement procedure available under Korean law to recover the money owed to it.

If you have any question about enforcement of foreign judgment in Korea, please send your inquiry to Mr. Wonil Chung by clicking here.

© 2013 Wonil Chung. All rights reserved.

Because of the generality of this update, the information provided herein may or may not reflect the most current legal development at the time of view, nor is it applicable in all situations nor should be acted upon without specific legal advice based on particular situations.

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 dealing with DUI or unlicensed driving even it causes bystander’s injury.

Seemingly, those cases fall within the justifiable grounds stated in the relevant statute enabling the immigration office to issue a deportation order.  But, the Korean court does not interpret laws mechanically.  They look into the totality of the facts and circumstances and decide whether it goes to far.

Let’s get back to the question.  Here, it is hard to predict the outcome of the appeal as the type of conviction is not provided.  But, as the question says he was married to a Korean national, it would work in great favor of him.  Preparing character witness is also helpful.  The petitioner must collect and provide sufficient evidence showing there exists significant irreparable harm when he is forced to leave Korea.  If he succeeds, the court will held that the deportation order is void.

By the way, when he files an appeal for the deportation order, at the same time, he must request a preliminary injunction to the court for the stay of the deportation order.  The court almost always issues the preliminary injunction which temporally invalidates the deportation order until the court makes the judgment.  This means, once the petitioner files the complaint and gets the preliminary injunction order, he can stay in Korea until the judgment is handed down.

If you have any question about a deportation order or other Korean immigration law related issue, please visit our Legal Consultation center or send your inquiry email by clicking here.  Our Korean licensed lawyers, not a U.S. lawyer residing in Korea, will answer your inquiry.

© 2013 Chung & Partners, a Korean Law Firm. All rights reserved.

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 does not honor the court’s decision of child return is subject to the fines not exceeding 10,000,000KRW and/or 30-day or less detention.

South Korea made a reservation and declared that it shall not be bound to assume any costs resulting from the participation of legal counsel or advisers or from court proceedings, except insofar as those costs may be covered by its Legal Aid Act.

If you have any question about this article, please send your inquiry by clicking here.

© 2013 Chung & Partners. All rights reserved.

Because of the generality of this update, the information provided herein may or may not reflect the most current legal development at the time of view, nor is it applicable in all situations nor should be acted upon without specific legal advice based on particular situations. 

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, if the supplier did not know the existence of the reselling deal, the supplier is not liable, because the loss was not foreseeable. With that said, the U.S. distributor in our case must prove that the Korean supplier had known the distributor completed the negotiation of resale agreement with 3rd party, in order to with the case.

This shows how important it is for the foreign distributors and importers to let the Korean suppliers know they have already made a resale deal with 3rd party.  Without that information notified to the supplier in advance, the Korean law would do little to protect the foreign distributors seeking damages from the suppliers relating to their 3rd party reselling deals.

Chung & Partners has been providing legal advice and representation to foreign distributors and agents relating to their distribution and reselling contract deals and disputes with Korean suppliers and manufacturers.  If you have any question about distribution and resale agreement under Korean law, please send your inquiry by clicking here.

© 2013 Chung & Partners. All rights reserved.

Because of the generality of this update, the information provided herein may or may not reflect the most current legal development at the time of view, nor is it applicable in all situations nor should be acted upon without specific legal advice based on particular situations. 

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 care about his marital status in South Korea, he may proceed in New York court.

Of course, if your friend finds the whereabouts of his wife, and the service is duly made to her, the New York divorce decree shall be honored by the Korean court.  But, as you might note, the service may take quite so long to be executed considering it should be done through sort of diplomatic channels between South Korea and the U.S.

By the way, if your friend knows the wife’s Korean resident registration number, he can locate her current address in Korea.  Also he can check the court records on whether she has filed for divorce in Korea or not, using that personal registration number.

If he can locate her address, finalizing a divorce in Korea would be a good alternative.  I saw many U.S. people using Korean divorce system and bring the Korean divorce decree to get recognized in the U.S.

If you have any question about foreign couple’s divorce and any family law related matters in Korea, please visit our Legal Consultation center or send your inquiry email by clicking here.  Our Korean licensed lawyers, not a U.S. lawyer residing in Korea, will answer your inquiry.

Also you can find a stack of competent legal information and articles on Korean family law, written by a Korean licensed lawyer, by clicking here.

© 2011 Chung & Partners, a Korean Law Firm. All rights reserved.

But, don’t worry too much.  You can enforce your duly obtained U.S judgment in Korea.  If you are sure the defendant has enough assets to cover your claims in the judgment and your legal fees, you can file for an enforcement order for foreign judgment to a Korean court.

According to Article 218 of Civil Procedure Act of South Korea, a final and conclusive judgement by a foreign court shall be recognized and enforceable in Korea, when all the following requirements are met:

1. the foreign court which issued the judgment had a jurisdiction over the case consistent with the principles of jurisdiction under Korean law and relevant international treaty;
2. the defeated party received, in a timely manner, a service of complaint and summons by lawful method excluding a service by public notice, or that she responded to the lawsuit even without being duly served.
3. the foreign judgment does not violate good moral and social order of South Korea; and
4. there exists a mutual guarantee between South Korea and the foreign jurisdiction where the judgment was issued.

As to the 3rd requirement above, please note that punitive damages award by a U.S. court is currently not recognized by Korean courts and therefore not fully enforceable in Korea.  That is because the concept of punitive damages is not accepted by the Korean law and the court sees it violating the social order of South Korea.  In torts law of Korea, the damages a plaintiff is entitled to is only actual damages which can be found legally and reasonably caused by the tortfeasor, which amount is eventually quite smaller than punitive damages.  So, if you bring a punitive damages award from a U.S. court to a Korean court in order to get it recognized and enforced, the Korean court will reduce the amount of the award to the level where Korean law would find it consistent with Korean torts law.

As to the 4th requirement, the mutual guarantee which the act requires is similar to the concept of comity and reciprocal recognition of judgments in the U.S.  Korean law requires the foreign jurisdiction where the judgment was issued has established the standard for recognition of a Korean judgement which should not be more difficult to be met when compared to the Korean legal standard.  This is somewhat hard to grasp, but if your judgment came from U.S. court, you don’t have to struggle, because Korean court has been ruling that there exists a mutual guarantee between Korea and U.S.  Also the state of Ontario in Canada was declared to have a mutual guarantee with South Korea by the court.

If you have any question about enforcement of foreign judgments in Korea, please send your inquiry to Mr. Wonil Chung by clicking here.

© 2012 Wonil Chung. All rights reserved.

Because of the generality of this update, the information provided herein may or may not reflect the most current legal development at the time of view, nor is it applicable in all situations nor should be acted upon without specific legal advice based on particular situations. 

Our attorney Mr. Wonil Chung acted as counsel for the Company and provided legal advice on every aspect of the deal from structuring to documentation.

Firstly, it must be mentioned that, under Korean law, if a matrimonial engagement is duly made, no party can legally terminate or rescind the engagement without justifiable causes.  This, however, does not mean the engagement shall be enforced regardless of the objection from the other party once the engagement agreement was made.  Rather, it just means if one party terminates the engagement without cause, he or she is obliged to pay monetary compensation to the other.

Then what are  the “justifiable causes” to terminate the engagement?  The law sets forth justifiable causes as follows:

1. If one of the parties has been sentenced to punishment of not less than suspension of qualification;
2. If one of the parties has been adjudicated as incompetent or quasi-incompetent after the conclusion of matrimonial engagement;
3. If one of the parties has been suffering from venereal disease, incurable psychosis or any other incurable malignant disease;
4. If one of the parties is engaged to or has married a person other than the party to the engagement after the conclusion of matrimonial engagement;
5. If one of the parties has committed adultery with another person after the conclusion of matrimonial engagement;
6. If the death and life of one of the parties has been unknown for one year or more after the conclusion of matrimonial engagement;
7. If one of the parties has refused or delayed marriage without due reason; or
8. If there exists any other serious reason.

One of the most litigious causes is the last one, “any other serious reason”.

With that said, you may now have some ideas that the main issues in this kind of litigation will hinge on (i) whether there exists a duly made matrimonial engagement between the parties, and (ii) (if it does) whether the breaching party has a justifiable cause of termination as described above.  That is to say, if an engagement was legally made and a party is to terminate the engagement unilaterally without justifiable cause, he or she will be obliged to pay some monetary compensation to the other.

Please note that, deciding whether there exists an engagement or not is a matter of legal judgement.  The court considers various facts to decide this issue.  Sometimes court refuses to acknowledge the existence of engagement when the duration for dating is too short or there had been no formal ceremony or there had been no mutual approval from both families.  But once again, these respective facts are not crucial.  The court will see the totality of the circumstances.

Lastly, as to the issue of “existence of serious reason to terminate the engagement”, one of the defenses that the defendant, who wants to get out of the binding engagement, might think of is an argument that the termination was not solely done by herself and it was inevitable because of mutual disagreement on something material in prospective matrimonial relationship.

We hope this to be of assistance to anyone who is in a situation of engagement termination dispute.  If you have any question about marital engagement or other Korean family law issue, please send your inquiry to askkorealaw@gmail.com.

© 2012 Chung & Partners. All rights reserved.

Because of the generality of this update, the information provided herein may or may not reflect the most current legal development at the time of view, nor is it applicable in all situations and should not be acted upon without specific legal advice based on particular situations.