In April 2013, attorney Mr. Wonil Chung successfully obtained a Supreme Court’s ruling which overturned lower court’s decision in connection with the sponsored links, Internet keyword advertising services, operated by Overture Services Inc., a wholly-owned U.S. subsidiary of Yahoo! Inc. Before this ruling from the Supreme Court of South Korea, there had been an increased controversy over whether Overture system user’s deployment of an automated program to access to the sponsored links could fall into a crime causing a harm to the Internet network system. In this case, attorney Mr. Chung argued before the Supreme Court of South Korea that it cannot constitute a statutory crime, otherwise the result would be an over-reaching of Korean criminal statute and cause an excessive chilling effect on the free access to the Internet. Responding to Mr. Chung’s arguments, the Supreme Court of South Korea held that it does not constitute a statutory crime of interference with stable operation of the Internet network. With its ruling, the Court struck down the prosecutor’s attempt of excessive criminalization and reinforced online service user’s
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 or an exit order from the immigration office is subject to the review of the court. It 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 it should not do more harm to the foreigner’s individual life than benefits to the public, otherwise it constitutes an abuse of discretion and therefore shall be revoked by the court’s order.
For example, the court has ruled that the deportation order against a HIV positive personnel is an abuse of discretionary power considering the person’s long-time living base established 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 after finding his solid living base in Korea supported by other character evidences is a legitimate interest which should be preserved by allowing his legal residency in Korea. Also there have been many successful appeal cases Continue reading
Let’s say you obtained damages recovery judgment from a U.S. court against a Korean residing in the states. But soon after your excitement 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 are encouraged to 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:
- 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;
- 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
On February 10, Seoul Central District Court ruled that Mr. Jin-Young Park, one of the most influential music producers and composers, had plagiarized another Korean composer’s song. The defendant Mr. Park is well-known as the co-owner of JYP Entertainment, one of the top Korean music production companies(Gi-Huek-Sa). He has produced numerous albums for famous K-Pop artists with great successes including, but not limited to, Rain, G.O.D and Wonder Girls.
The plaintiff Mr. Shin-Il Kim, a K-Pop composer, had filed a lawsuit against Mr. Park on July 2011, claiming Mr. Park’s song titled “Someday”, sung by IU, had infringed his song titled “To My Man” and he is entitled to a compensation of approximately 90,000USD.
It was reported that the judge recommended a settlement to the parties before issuing the ruling, but the both parties objected to it. And finally the court sided with the plaintiff. The Court found that four bars from the chorus of the defendant’s song is substantially similar to that of the plaintiff’s song which constitutes a copyright infringement and ordered the defendant to pay approximately 20,000USD to the plaintiff as a remedy.
Under Korean copyright law, a claim for plagiarism and copyright infringement is established when the defendant had access to the copyrighted work of the plaintiff and there exists a substantial similarity between the two works. With regard to the first element, 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/child support/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 one of South Korean iPhone users for the breaching of privacy by the controversial iPhone user location tracking. Here is the detail from Reuters.
By the way, some news media reported that this was a 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 a formal trial case, but a Request for a Payment Order case. Payment order is a more convenient & simplified legal procedure 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
Q) I wish to file a divorce from my wife. Our relationship ended in practice earlier this year and she returned to Korea in August. We were marred in Korea. I wonder how can I file for our divorce as she is in Korea but I am not living in Korea. I would prefer uncontested but would go with a contested divorce if necessary. But I am living in the UK. Can you tell me what process I should pursue?
A) At the outset, as your wife lives in Korea, you can file for divorce to a Korean Family Court. Even if your wife does not have a Korean nationality, it is still the same. But you probably need to hire a Korean legal counsel who can represent you in the court, as you are not living in Korea. With that said, if you hire a Korean divorce attorney, you are not required to come to Korea nor to attend the court. Your Korean divorce attorney will handle everything for you.
The next issue will be which nation’s divorce law will govern your case, when you file for divorce in Korea. If your wife is a Korean, then the Korean divorce law shall be the governing law. If your wife is a UK citizen, then the divorce law of UK shall apply.
When the Korean divorce law becomes the governing law, in order to get a divorce decree, you have to show some types of justifiable causes for divorce under Korean law such as domestic violence, unchastity, etc. Not surprisingly, Korean court quite often issues a divorce ruling when it founds the marriage was irretrievably broken. Common grounds Continue reading