There is no doubt that intellectual property is a valuable asset and parties all around the world are dealing with an arrange of utilizing 3rd party’s intellectual properties. Sometimes it could be a license or sometimes a transfer. In any case it is very important to verify the validity of the underlying intellectual property before entering into a contract. As for a patent, first it looks relatively simple compared to other intellectual property such as a copyright to clear this issue because a patent is being registered with the Korean Intellectual Property Office. The registration, however, does not guaranty the validity of the patent at issue. It can be challenged later by 3rd party and could be nullified by the court’s decision. Then what happens if the patent becomes void after the license agreement is entered into? The Korean Patent Act provides that if a court’s decision invalidating a patent becomes final and conclusive, the patent shall be deemed never to have existed. Then what happens to the royalty previously paid by the licensee? Does the licensee can refuse to pay the royalty after the patent gets invalidated and even ask for the refund of the royalties previously paid pursuant to the patent license agreement? The Supreme Court of Korea said No.
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Category Archives: Entire Entries
Choice of Laws Is Critical When It Comes to an International Inheritance
Recently our office has represented US clients whose German father had passed away in South Korea without any will. At the time of passing, the deceased was domiciled in Korea and remarried to a Korean wife. The Korean wife contacted the US family out of blue to discuss how to distribute the estate in Korea. The US clients were the children from the deceased’s previous marriage in the US. They contacted our office for the legal advice and representation.
One of the issues was which country’s inheritance law shall be applicable, i.e. the Korean inheritance law or the German inheritance law. This was because the deceased had a foreign nationality, while his estate and residence at the time of passing were all in Korea. Practically, when the Korean law is applied, the US children shall be entitled to the larger shares than those granted under the German law.
In Korea, Article 49 of the Korean Act on Private International Law(“APIL”) is the starting point to determine which country’s law shall be the governing law in case of an international inheritance case. It provides that Continue reading
(Q&A) International Divorce in Korea: Jurisdiction, Governing Law, Asset Distribution and Immigration Issues
Q) I am a US citizen with a Korean spouse. We married in Seoul and then went to America where we have been since. I have been a NJ resident. Korean spouse abandoned me in 2018 and went to live with her friend in Maryland. Korean spouse states that she wants a divorce and insists she is entitled to all of my monies in Korea. My options are to file for divorce in New Jersey or Maryland. I also want to see what Korean court can do. Ideally I would want to get the F-6-1 visa in Korea as well as ensure my stake in the Korean property.
A) Here you have two main issues correlated with an international divorce: an international jurisdiction and a governing law.
If your wife has any registered address in Korea, the jurisdiction would not become an issue. However, as I understand she is residing in Maryland, it would be become an issue whether a Korean court could exercise a jurisdiction over two persons who are now living in Korea.
In this regard, the Private International Act(“PIA”) provides that the Korean court shall have the international jurisdiction when a party or a case in dispute is substantially related to South Korea. This means the residence Continue reading
Rights of a Criminal Suspect during the Korean Investigation Procedures – Self-Advocacy Note Presented by the Seoul Bar Association
The Seoul Bar Association has recently issued a Self-Advocacy Note for the use of any criminal suspect under the Korean investigative procedures. Before this being issued, the National Human Rights Commissions had recommended the police and the prosecutors to guarantee the criminal suspects’ right to take notes. Although this may sound weird to some from other countries, the Korean police and prosecutors have been prohibiting the suspects from taking their own notes during the interrogation.
This Self-Advocy note is prepared in order to help any suspect inducing a foreign suspect to fully understand and examine his/her statutory rights to self-advocacy before and during the investigative procedures. You can download it at the homepage of the Seoul Bar association or by clicking here.
This also contains a good explanation of the overall investigative procedures under Korean law. Below is quoted from the English version of Self-Advocacy Note which explains about the Criminal Investigative Procedures in Korea. It should be greatly appreciated that Continue reading
[Q&A] As a Korean Adoptee Living in the U.S., Do I Have an Inheritance Right to My Biological Father in Korea?
Q) I am a Korean adoptee that lives 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. Do I have a right to claim an inheritance to his estate? 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 rights?
A) Based on your explanation, I am of the opinion that you are entitled to the inheritance to your deceased Korean father. The law of your deceased father’s home country shall govern your inheritance claim. Under Korean law, assuming he is survived by his wife and 2 sons, your inheritance share will be 2/9. (Please click here for a general overview of the Korean inheritance law)
You will need to file 2 suits with the Korean court. The first one will be a paternity suit and the second one will be a inheritance claim suit.
Actually I have been dealing with a very similar case. She was adopted to American family when she was young from Korea and asked our office to claim her inheritance to her deceased Korean biological father. We won the paternity suit Continue reading
Prenuptial Agreement under Korean Law
Unlike situations in some states in the U.S., a prenuptial agreement is somewhat in a grey area in Korean legal system. When the case later goes into a divorce by agreement, the prenup would be fully honored by the court, too. When the case, however, goes into a judicial divorce or a contested divorce, the Korean court applies more strict standard in honoring the validity and application scope of the prenuptial agreement.
I would not say signing a prenuptial agreement is meaningless. To the contrary having a prenuptial agreement is better than having no such agreement. Even in case of a contested divorce, the existence of a prenuptial agreement could work for your advantage when the court decides which property shall be distributed and which property shall be opted out.
If you have any question regarding this article or you are in a similar case/situation , please visit our Legal Consultation center or send your inquiry email by clicking here. Our Korean qualified lawyer will answer your inquiry.
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[Q&A] My Wife Took My Child without My Consent to South Korea. Can I Get My Child Returned?
Q) I am a US citizen who married a Korean wife. We moved to California in 2015 and also had a son the same year. This year, she suddenly left in April and refused to return home with our son. It has been 3 months now since I have been able to be with our son and she flat out denies my right to be with him. I am not abusive nor have I ever been violent towards her or our son. I have already sent in my Hague Convention Application to the U.S. State Department to get the Hague process started. I would like to know if your firm has handled Hague cases for International Parental Child Abduction and if you have been successful in having the child returned to their country of habitual residence.
A) 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(please refer to our previous article on this subject).
I have dealt with the first Hague international child abduction case at the Seoul Family Court and succeeded in getting the child back to her habitual residence. Continue reading
