[Updated on March 20th, 2020] In South Korea, the immigration office may remove or deport from South Korea any person who violated the Immigration Control Act(“ICA”). Any person who is released after receiving a sentence of fine, imprisonment or heavier punishment could be removed from Korea by an exit or a deportation order pursuant to ICA. In this article, we will provide a general overview of an exit and deportation order under Korean immigration law. Continue reading
Category Archives: Entire Entries
Corporate Director’s Fiduciary Duty under Korean Law
Q) I would like to enquire about a situation of a director working at a Korean subsidiary (corporation) of U.S. company, who has secretly started a similar trade of business while still in employment with his current employer. Having served in a managerial position, he has access to his employer’s full clientele’s information, trade secret and now he started the same business as his employer, directly causing many economic losses to his employer. Is there any way legally to prevent the person from causing further damages?
A) Under Korean law, a director of a corporation bears a fiduciary duty. Thus the directors shall perform their duties in good faith for the interest of the company. Their activities shall not violate the statutes and the articles of incorporation of the company. Continue reading
A Guide to Severance Pay under Korean Law
[Updated: February 12, 2020] There was a news report that more than half of foreign workers in South Korea are not aware of the fact that they are entitled to receive severance pay under Korean law. Yes, Korean labor law recognizes severance pay. It is being regulated by Guarantee of Workers’ Retirement Benefits Act(“GWRBA”).
In this article, we will provide you a guide to the general ideas of how severance pay works, who gets it and how much in Korea. Continue reading
Getting Divorced in Korea as Foreigners: The Ultimate Guide
[Updated on February 10th, 2020] We have been frequently asked about getting divorced in Korea as foreigners. In this article, we provide you with the most essential information about divorcing in Korea.
Can Foreigners Get a Divorce Decree from the Korean Court?
Yes, Korean divorce law doesn’t treat foreigners differently. Foreign spouses who married Korean citizens and even foreign spouses who married non-Korean citizens can divorce in Korea.
One thing to note is the Korean courts’ rule of jurisdiction which applies to international divorce. Generally speaking, the Korean court will accept a divorce filing when the other spouse, i.e. the respondent, resides in Korea.
There is an exception to this. In certain situations, the foreign spouse can get a divorce decree from the Korean court even when Continue reading
Can an Adopted Child Inherit from Biological Parents in Korea?
“I am an adoptee from South Korea to the U.S. Currently I live in the U.S. Recently I found my biological parents died in South Korea. He is survived by his wife and 2 sons. He had businesses in Korea. Can an adopted child inherit from biological parents in Korea? I have never met or spoken to his wife and sons and so I don’t know if he had a will written. What are my inheritance rights under Korean law?”
Everything Boils Down to Whether it is Full Adoption or Simple Adoption
A legal child is entitled to inheritance from his/her deceased parent. When the child is adopted, some jurisdictions treat the adoption as disconnecting the legal relationship with the biological parent, and some jurisdictions don’t. We call the former as a full adoption and the latter as a simple adoption.
As you can understand from the general idea of inheritance, an adopted child can inherit from biological parents in Korea only when the adoption is regarded as Continue reading
How to Resolve a Criminal Investigation Pending in Korea While Residing Abroad
We are taking about a situation where a foreigner is accused of any crime in Korea but he has already left Korea for any reason. Some might come back to Korea to defend himself or some might just ignore it. However, just ignoring can’t free you from the potential legal risk. You won’t be allowed to enter into Korea and could be arrested at the border. Recently, Korean Police is very active in requesting the INTERPOL to issue a red notice in order to have law enforcement worldwide locate and provisionally arrest the suspect.
Then can a foreign suspect resolve a pending criminal investigation case while staying abroad? The answer is yes, but in a very exceptional case. The Korean prosecutors are having a strict position that all suspects must appear at the face-to-face interrogation with the investigating authority. If the suspect refuses to do so or the Korean prosecutor can’t locate the suspect, the prosecutor suspends the investigation and asks the court to issue an arrest warrant. This warrant is noticed to the Korean immigration office. As a result, the suspect could be arrested when s/he passes the Korean border. Being abroad are usually insufficient as a just excuse.
There are, however, certain exceptions where the criminal case can be resolved without the suspect’s personal appearance: Continue reading
(Q&A) Can I Divorce Through the Korean Court While My Wife Lives in Korea and Me in the U.S?
Q) I’m an American and my wife is Korean. She is living in Korea and I have returned to the USA. We have agreed to divorce. However, I can’t go back to Korea just to sign the papers. Is it possible to have her do it? Or have her email me the divorce agreement for me to sign and return to her?
A) There are two types of divorce in Korea. One is a divorce by agreement and the other one is a divorce by judgment. When people agree to divorce, there is no need to file for a divorce by judgment. A divorce judgment is a judicial judgment that basically requires a court hearing, review and judgment.
There is one particular situation, however, when a divorce by judgment is required even when the divorce is uncontested. That is when one spouse doesn’t reside in Korea.
The divorce by agreement in Korea requires both parties to reside within Korea. The judge needs to confirm the genuine intent of divorce by meeting up with the couple at the courthouse. Thus, when one spouse lives abroad like you, the court cannot process the application for divorce.
You might wonder if Continue reading
(Case Review) What You Should Know about International Inheritance in South Korea – Statutory Share, Contributory Share and Special Benefit
(Case)
I am a U.S. citizen. I currently have a very complicated inheritance case in South Korea. My father passed away 10 years ago in the U.S. and his two Korean half brothers in Korea are currently suing my family for my father’s portion as well as my father’s sister’s portion as she passed away many years ago. They are claiming they want 60% of my father’s portion and all of my aunt. There is no will left by my grandfather. They are claiming that they took care of the grandfather who was a Korean citizen. However, when my father was alive he also sent money regularly to his father and his half brothers but as it was more than 10 years ago I am uncertain how to proceed.
Governing Law Issue
Inheritance gets more complicated when it has some sort of multinational issues. Here the Korean heirs sued the U.S. heirs at the Korean court. The deceased was a Korean national and it is probable that the majority of the estate is located in Korea. That might be one of the reasons why this case should be litigated in Korea, not the U.S.
In an international inheritance case, we first need to find out which country’s law shall apply. As this case was filed with the Korean court, the Korean court decides this issue pursuant to their own choice of law doctrines. According to the Korean choice of law, the law of the deceased’s country shall become the governing law. That means, in our case, the Korean Inheritance law shall apply. (Please refer to this article regarding the basic of Korean Inheritance law)
Continue reading(Q&A) My Korean Half Brother Asks Me to Sign Over a Korean Inheritance Document. What Should I do?
Q) I was born in Korea but married a US citizen, moved to the US and am now a US citizen.I learned that my father has passed away in Korea and am looking for some assistance on accepting or renouncing the inheritance. I was the forth child. After I was born, my parents divorced and the first two children went with my father and the third child and I went with my mother. My father remarried and had three other children. My mother and the second wife are still alive. I was told that the estate includes property (house) and some savings. The second wife wants to live in the house until she dies and it sounds like my other siblings agreed. My half brother with whom I’ve had no previous contact called and said they need my cooperation to proceed. He asked me to sign some Korean document which I don’t understand. I’m trying to decide whether to accept or renounce the inheritance and how to accomplish either of those in the easiest way possible.
A) Under Korean inheritance law, currently you are the co-owner of the total estate without any registration or report. Other heirs cannot distribute, dispose of the estate without your consent.
The heirs in Korea might be in a hurry to pay the inheritance tax which might be one of the reasons why he contacted you. But, you should not give them the power of attorney or any authorization/consent until you have the information you need which includes your deceased parent’s name, Korean residence registration number and the detail of the estate. If he refuses to provide that, I think that is a red flag. At least he should let you know the Korean resident registration number, which is Continue reading
[Q&A] Criminal Charge and Its Legal Implications in Exit Order, Entry Ban and Visa Refusal in Korea
Q) This past weekend I was involved in some altercation with a Korean guy at the local bar. I pushed him slightly, but he fell down and broke his wrist. He phoned a police officer and filed a criminal accusation against me. I am an E-2 visa holder. What can I do now to help myself?
A) If you are a first offender and had no other criminal record, I don’t think this case becomes a serious one. However, as you are a foreigner, any conviction could lead to an exit order and an entry ban decision from the Korean immigration office. Under the current rule, if a foreigner is fined more than 5,000,000KRW for any crime in Korea, the immigration office can issue an exit order and a future visa application and extension could be denied. It can also result in an entry ban. Under the rule, the duration of the entry ban is as follows:
- the total amount of fine for the last 1 year exceeds 5,000,000KRW: 1 year
- committed any crime more than 2 times for the last 1 year: 1 year
- the amount of fine is between Continue reading