Tag Archives: Korean Law Firm

Does Korean Court issue a Provisional Attachment Order in Support of the Proceedings in the Merit in Foreign Courts?

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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 →

Is Australian Court’s Money Judgment Enforceable in South Korea?

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법원마크A 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&A: Immigration Law] Can I Appeal the Deportation Order Issued by the Korean Immigration Office?

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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 →

Recognition and Enforcement of Foreign Judgments in South Korea

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Let’s say you obtained damages recovery judgment from a U.S. court against a Korean in the states.  But soon after you got excited for the winning judgment, you found he has no assets in the states to fulfill your judgment.  This could also happen in a litigation between U.S. citizens in a U.S. court where the losing defendant moved to South Korea and there are no assets left in the U.S.  You might have spent quite large amount of legal fees to win the judgment already, but you think your judgment is now in great peril to be useless.  This horrible situation might frustrate you.

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 Continue reading →

[Q&A: Family Law] Is My Canadian Divorce Decree Including Alimony and Child Support Order Enforceable in Korea?

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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 →

Apple’s Korean Office Paid Compensation to a South Korean User for iPhone Location Tracking – Does This Mean Korean Court Made an End to the Legal Turmoil?

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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 →

Court Rulings on the legality of Internet-Based TV Recording Service and Time/Place-Shifting Device Hosting Service – Korea, Japan, Singapore and the U.S.

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There exist growing needs for consumers to watch TV broadcastings from any place and by any way they want.  In response to these needs, several new business models have come into; for example, an Internet TV recording and/or streaming service, RS-DVR, SlingBox and any other place/time-shifting devices hosting services.  But the problem is that copyright holders, the TV broadcasting companies, are fiercely objecting to these new business models contending they are infringing their copyrights.  It is quite interesting for an IP lawyer to see how the courts from various countries have found the answer to this legal issue.

Lets’ start with the situation in South Korea, where I’m practicing the law.  Actually there have been two cases related to this issue; Ental TV case and MyTV case.  Ental TV was an Internet-based TV recording service.  The registered users paid some amount of fees to the service provider and the service provider recorded TV broadcastings on its server at the request of the individual users with its automated software program, then converted it into the PC file format and sent the file to the user via Internet.  On April 30, 2009, the Seoul High Court ruled this Ental TV service infringed copyright of the TV Broadcasters.  The court found that it was the service provider, not an individual user, who recorded and copied the TV program, because the service provider owned and managed all the facilities used in recording the TV program.  Also the Court added that even though it was the individual user who copied the TV program, the very act of copying Continue reading →