Like many other countries, South Korea has its own merger notification & competition review regimes. This means if your M&A deal involving a Korean company or business meets the merger notification thresholds prescribed in the rules of the Korean competition authority, you need to make a merger filing. And your transaction becomes subject to the authority’s competition review. Thus, it is imperative that the dealmakers should be fully advised on the Korean merger filing rules for the applicability and for any potential risks.
(more…)Category: General Information
Morals Clause in an Endorsement Agreement with Korean Celebrity
When you enter into an endorsement agreement with a celebrity in order to advertise your products and services, the overall behavior of that celebrity impacts the value and reputation of your business positively, and sometimes negatively. Therefore, most endorsement agreements with a celebrity or a sports star have a so-called Morals Clause.
(more…)When Do I Need a Personal Injury Lawyer in Korea? – A Guide to Personal Injury Compensation in Korea
Living abroad is stressful. Suffering injury by accident in a foreign country would be one of the worst cases you don’t even want to imagine. Our office is providing legal advice and representation for foreign victims to seek damages in various types of accidents.
In this article, our personal injury lawyer in Seoul, Korea explains what you need to know about the personal injury lawyers in Korea and what you can expect from them.
(more…)Introduction to the Deportation and Exit Order and How to Appeal in Korea
[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. (more…)
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. (more…)
A Guide to Severance Pay under Korean Law
[Updated: May 6, 2020]
There was a news report that more than half of the foreign workers in South Korea are not aware of the fact that they can claim for the severance pay. Yes, Korean labor law recognizes severance pay. It is being regulated by the 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. (more…)
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 (more…)
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 (more…)
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: (more…)
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? I just want to know how to divorce when the spouse doesn’t live in Korea.
Spouses Can Live in Different Country to File for Divorce in Korea
In general, the Korean court requires at least one spouse to reside in Korea in order to process the divorce filing. Thus, the fact that one spouse resides in a foreign country doesn’t bar a spouse living in Korea to file for divorce. The issue, however, lies in a procedural matter.
(more…)(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)
(more…)(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 (more…)
[Q&A] Criminal Charge and Its Legal Implications to 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 (more…)
Is a Private Adoption Legal in South Korea?
Private Adoption is Legal in South Korea
The answer is yes, private adoption is legal in South Korea. There are two types of adoption under the Korean legal system. One is a private adoption and the other one is a foster care/institutional adoption. Private adoption is an adoption that is initiated by a private placement from the birth parent without the involvement of any adoption agency. The most important distinction of private adoption is that it is regulated by the Civil Code and it cannot be executed for a child in a foster care or an orphanage. Any child who is in a foster care or an orphanage (“Special Protection Child”) should be adopted through the government-approved adoption agency. This foster care adoption is regulated not by the Civil Code but by the Act on Special Case Concerning Adoption.
Private Adoption and Foster Care Adoption Are Regulated by Totally Different Legal Systems
Although the two adoptions are regulated by totally different legal systems, many people often confuse these two. As a foster care adoption must be taken care of by an adoption agency, non-foster care adoption, i.e. a private adoption, (more…)
Do I Have to Make a Tax Report with the Korean Authority Regarding a U.S. House Gifted by Korean Parent – International Gifts and Korean Tax Laws
When receiving gifts of money or other property, the party should check any tax issues involved. When the gifts cross the national borders or involve foreign parties, it becomes more complicated. It could entail an additional filing with a government of a foreign country where the foreign party resides. Today, we are going to introduce what report and tax liability the parties should take care of and under what condition, when a U.S. resident receives a U.S located house as a gift from his Korean resident parent.
Report to the Bank of Korea
According to Article 7-46 and 7-44 of Foreign Exchange Transaction Regulation(FETR), when a resident of Korea gifts a real property, which is even located abroad, to any non-resident, the Korean resident(devisor) should report the transaction in advance to the Bank of Korea.
The nationality of the parties doesn’t matter here. Only the place of residence does matter. The Korean Tax authority (National Tax Service) has an internal rule to apply to decide who is a resident and who is not.
Introduction to the Property Division and Consolation Money Claim under the Korean Divorce Law
When you divorce under Korean law, there are subsequent legal matters of property division and consolation money.
A property division is a legal right of any spouse who is divorced under the Korean law. Some people think a spouse at fault is not awarded this right, but that is not true. There was a court case where even a spouse who cheated on the wife can claim for property division.
The subject of division is any and every marital asset acquired and/or maintained during the marriage. The debts are also divided.
When dividing the marital asset, the Korean court will decide and apply the contributor share of each party in the course of acquiring and maintaining the marital assets regardless of whose name is on it. The most common ratio is 50:50. But when the time of marriage is very short and the value of the assets is high, (more…)
(Q&A) I Want to Know about Annulment and Revocation of Marriage under Korean Law
Q) I am seeking a Korean divorce lawyer for my divorce case against my Korean wife. She lives in Seoul, Korea. I am American and live in California. We had a wedding ceremony in California. We visited South Korea right after the ceremony to file a marriage report with the Korean local government office in Seoul. However, things didn’t go well. She left and we started a separation right after the report. We lived together only for a week. She had some bipolar issue and that caused lots of stress to our relationship. I was not 100% sure when filing the marriage report. I am wondering if I can file for an annulment or a divorce in Korea.
A) First of all, assuming your wife has a habitual residence in Korea, the Korean family law shall apply here.
Under Korean law, annulment and revocation of marriage are recognized. I think, however, annulment and revocation/cancellation of marriage claims are not easy to be established here.
Under Korean law, the annulment requires a lack of genuine intent of marriage. It seems, however, that you agreed to file the marriage report, which is the strong evidence that you had a genuine intent of marriage. Of course, this intent is reviewed and decided at the time of the marriage report, not later. (more…)
Chung & Partners Successfully Convinced Appellate Court to Reverse Lower Court’s Denial of U.S. Parents Adoption Petition
Recently our office represented U.S. parents whose adoption application had been denied by the Korean court. The adoption was processed as an institutional adoption which is regulated by the Act on Special Cases Concerning the Promotion and Procedure of Adoption. Institutional adoption, often called an orphanage adoption, is under more strict regulation and qualifications than a private adoption. In this case, the 1st instance court of Seoul Family Court denied the U.S. parents’ adoption petition due to the concern caused by the adoptive parent’s past medical history of Obsessive-Compulsive Disorder (OCD).
Our office, led by lawyer Mr. Wonil Chung, took this case at the appellate court level. We reviewed the entire record and documents from the beginning and found that the lower court’s finding and the conclusion were not based on the true facts, but on the vague concern. We even found a critical error in the translation of the ODC evaluation report provided by the Korean adoption agency.
Mr. Chung argued in front of the appellate judges that U.S. medical professionals had stated that the petitioner’s OCD did not harm his suitability as an adoptive parent. He also pointed out that the U.S. government had (more…)
How to Cope with the Korean Police’s Summon for Criminal Investigation
Can Korean Police Issue a Summon Even When the Suspect Resides Abroad?
For a starter, there may be a question about whether the Korean police can summon a foreigner who resides abroad. The answer is yes. The Korean criminal law applies to those who have committed crimes within Korea and then gone abroad, as well as those who have committed crimes against Koreans while staying outside of Korea. Thus, a foreign resident could be sued and accused by the Korean police, and in such case, the Korean police moves to demand the foreign suspect to attend the investigation in Korea. Recently, our office sees many cases where a foreign resident employee of a foreign company is called in by the Korean police in relation with its Korean subsidiary’s business.
Do I have to comply with the summon?
Since a foreign country is not within the domain of Korea’s criminal jurisdiction, it is not mandatory for the foreign resident suspect to comply with the summon. However, if the foreign resident suspect refuses to comply with, the Korean law enforcement authority can get an arrest warranty, which could put the suspect at risk of being arrested upon entering Korea. (more…)
How Fast Can a Divorce Be Finalized in Korea?
Divorce could be one of the hardest decisions that people make during their entire life. If people decide to divorce, one question they might ask their Korean divorce lawyer is how long it will take to get the divorce decree from the Korean Family Court. The short answer to this question is that it depends, the magic phrase that the lawyers would love to use in almost every dialogue. The thing is, however, that it really depends on various factors, especially what types of divorce they are going through. It could be a contested divorce or an uncontested divorce, which requires totally different approach and care.
If it is an uncontested divorce which means the parties have been able to agree about all the issues involved in a divorce such as custody, child support, visitation, property division and consolation money, the divorce decree can be obtained within 1 to 2 months. That is pretty fast compared to other countries. The parties don’t need to appear at the court so long as a Korean divorce attorney takes care of the case. That is how our office in Seoul has been handling the uncontested divorce cases.
If the divorce is contested, it requires more time for the Korean Family Court to render a divorce decree. It should go through several hearings and extensive arguments between the parties. (more…)
Intellectual Property Licensing in Korea – What Happens to Royalty Payment When the Patent Becomes Invalidated
There is no doubt that intellectual property is a valuable asset. Parties all around the world are taking an arrangement to utilize 3rd party’s intellectual properties. Sometimes it could be a license agreement 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 to clear the validity, compared to other intellectual property such as a copyright. 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? (more…)
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 (more…)
(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 the 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 in Korea: 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 become an issue whether a Korean court could exercise 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 international jurisdiction when a party or a case in dispute is substantially related to South Korea. This means the residence (more…)
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 (more…)
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] Wife Took My Child to South Korea without My Consent. Can I Get My Child Returned?
Q) I am a US citizen who married a Korean wife. We moved to California 5 years ago. This year, she suddenly left and refused to return home with our son. It has been 3 months but 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 start the Hague process. I would like to know if your firm has handled Hague cases for International Parental Child Abduction.
South Korea Is a Contracting Nation to Hague Child Abduction Convention
On December 13, 2012, South Korea had become the 89th contracting nation to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Child Abduction Convention”, please refer to our previous article).
Hague Child Abduction Convention aims to secure the prompt return of the children under the age of 16 who were wrongfully removed or retained from their countries of habitual residence.
As South Korea and the U.S are both contracting nations of the Hague Child Abduction Convention, you may get a child return order from the Korean court when your child was taken into South Korea without your consent.
Our office had 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. (The case was settled by the respondent’s voluntary return after we had filed an application with the court)
In this article, our international child abduction attorney in Korea explains how the Korean court and attorneys can help the return of your child under the Hague Child Abduction Convention.
(more…)Specific Grounds for Disciplinary Action or Termination under Korean Labor Law – Employer’s Standpoint
When you hire an employee in South Korea, you cannot freely fire the employee. Article 23 of Labor Standard Act(“LSA”) requires a “justifiable cause” if and when an employer takes disciplinary actions, including termination of employment, with regard to its employees. Korean courts have held that a “justifiable cause” refers to such causes as a criminal offense, serious illegal acts, and gross negligent acts, etc. which would make maintaining of the relevant employment relationships no longer possible under generally accepted public notions.
Especially, because termination of employment is the most extreme measure, taking away an employee’s means of making a living, Korean courts are known to be very strict in applying the above-noted criteria, when it determines whether a particular termination is justified. Thus, unless an employee’s specific conduct is something that makes the current employer-employee relationship no longer possible to continue, it would be advisable for an employer to take less severe disciplinary actions such as suspension of employment, reduction of salary, or reprimand.
Further, as regards the employment termination, under LSA, an employer may also terminate employees where the employer can establish (more…)
[Q&A] You Can Enter into Korea during the Entry Ban Period with a Special Entry Permit from the Immigration Office
Q) I was deported from Korea in 2015. I was given a five year entry ban for domestic violence against my then ex South Korean wife. The sentence I received was 3 years probation. However, I have a young child in Korea, who is taken care of by my ex-wife, but I have been paying the child supports. I would like to visit Korea to see my child but I am very worried that my visa application or entry would be denied by the past record and the entry ban. My ex wife and I are now in a good relationship and she would provide a supportive letter for me. What is the likelihood that the Korean immigration will allow me to see my son?
A) In principle, a foreigner listed on the entry ban of Korean immigration office is prohibited to enter Korea for some period of time. There is, however, a special entry permit which can be made during the period of entry ban for some humanitarian reason. Most common cases are for the family unity purposes. For example, there was a case where (more…)
[Q&A] Getting a Korean Criminal Investigation Records Check Reply While Staying Abroad
Q) I want to know how to get a Korean Criminal Investigation Records Check Reply. For my immigration application purpose, I need to submit this to the Canadian authority (CIC Canada). They said this document must include the “lapsed records”, i.e. all the criminal records database search. I contacted the Korean embassy in Toronto and they only issue normal Police Record which is not accepted by the CIC. They told me I had to get it from the local police station in South Korea. However, it is not feasible for me to visit Korea just in order to get this document. I’m wondering whether your law firm deals with this type of case. If so, I would like to know the details of the process.
A) Yes, we’ve been dealing with this kind of case quite often. The Canadian immigration office is requesting a Police Certificate. The official title of this document in Korea is a Korean Criminal Investigation Records Check Reply(범죄수사경력회보서). There are many people wondering how to get this Korean criminal background check and it also seems that there is conflicting information about this.
(more…)[Q&A] Fake ID and Citizenship Revocation
Q) Recently, the Ministry of Justice(MOJ) had revoked my Korean citizenship. I came from Pakistan, lived in Korea for 12 years without any problem and duly acquired my Korean citizenship 3 years ago. The MOJ’s decision was made on the ground that my passport had been forged. But that is not true. It has a different name on it but it was a newly issued one which can be authorized by the local government. Can I get my Korean citizenship back?
A) First of all, the MOJ’ decision to revoke your Korean citizenship is under the judicial review of Korean Administrative court. There are cases where the court overturned the MOJ’s citizenship revocation on the ground that either (i) there is no legal ground for revocation and/or (ii) the decision causes too much personal harm rather than serving a public cause.
There are many fake/newly-issued foreign passport cases in Korea. Some courts held that the revocation made against a person who had submitted a fake/newly-issued foreign passport while (more…)
Do I Really Have to Renounce Inheritance in Korea as Other Korean Heirs Claim?
Q) I have a question about whether to renounce inheritance in Korea. My mother passed away a few months ago. There was no will. She was a Korean citizen and her husband too. All two children live in the U.S. and they are U.S. citizens. As we understand I have inherited a 2/7 share of my mother’s condominium and some cash in Korea. My stepfather and his Korean lawyer seem to up to no good. They both have sent conflicting and in my opinion false information to me. Especially his lawyer is threatening me that I would not able to sell my share so I had no choice but to give up or transfer my share. The stepfather asked me to sign POA and a Renunciation of Inheritance but I refused. They even said as I am not a Korean citizen, it would be much better renouncing inheritance for the sake of estate distribution. He said he will compensate me for my renounced share. Can you give me any advice?
(more…)An Overview of Paternity, Child Custody, Visitation and Child Support under Korean Law
We have received many inquiries regarding the child support obligation and custody/visitation rights under Korean law. Some cases are related to the divorcing parties and some to the unmarried couples who had babies during the relationship.
In case of unmarried couples, the birth father has no parental rights and obligations until his paternity is established in Korea. That can be done in 2 ways. One is to report himself as the father with the Korean local government and the other one is filing a paternity suit.
When the parental relationship is established, the parties need to agree on the matters of child custody, visitation and child support. The same goes for the couple divorcing in South Korea. When it is hard to reach an agreement, (more…)
[Case Report] Attorney Wonil Chung Wins for Seconded Employee’s Korean Severance Pay Entitlement
There are so many seconded workers in Korea. The secondment of an employee creates various legal issues in Korea. One of them is the seconded employee’s severance pay in Korea. The Korean labor law recognizes the severance payment liability of all employers having business in Korea. This doesn’t ask the nationality of the employee. (Please check here as to how the severance pay under Korean law is recognized and operates) The problem is that some foreign companies are ignorant of their severance pay liability under Korean law. Even further, some foreign employers try to evade their severance liability intentionally.
(more…)Specific Grounds for Disciplinary Action or Termination under Korean Labor Law
It is first noted that the basic law in Korea regulating labor standards is the Labor Standards Act (“LSA”), ”), which is applicable to the employers with at least 5 employees. As for the employers with less than 5 employees, only a part of LSA provisions would be applicable. And, LSA provisions relating to our comments below are not applicable to these employers with less than 5 employees. The only statutory restriction for a employer with less than 5 employees is the prohibition of dismissal during a particular period of time such as employee’s illness and childbirth. That said, please bear in mind that our comments below are only provided for employers and employees at a workplace with at least 5 employees.
Article 23 of LSA requires a “justifiable cause” if and when an employer takes disciplinary actions, including termination of employment, with regard to its employees. Korean courts have held that a “justifiable cause” refers to such causes as criminal offence, serious illegal acts, and gross negligent acts, etc. which would make maintaining of the relevant employment relationships no longer possible under generally accepted public notions.
Especially, because a termination of employment is the most extreme measure, taking away an employee’s means of making a living, Korean courts are known to be very strict in applying the above-noted criteria, when it determines whether a particular termination is justified. Thus, (more…)
[Q&A] Leaking Employer’s Confidential Information and Employment Termination : What Is Confidential Information under Korean Law?
“Hello, I am a U.S. citizen working for a Korean listed company. Recently my company sent me a dismissal notice saying I had breached the employment contract by leaking their confidential information. Informations at issue are a set of sale/purchase statements of the company. I downloaded those informations from the company’s server to my personal email account. But, there has been no warning mark of confidentiality. My other colleagues have a free access too, and the information sometimes was provided to our suppliers. Did I really breach the confidentiality of my Korean employer?”
Leaking employer’s confidential information could result in a termination of the employment contract. The legal issue, however, still remain whether or not the information can be regarded as a confidential information.
Most employers in Korea have their own rules of employment which state what is a confidential information. And even an employment contract could list a set of confidential informations which the employee should not disclose to 3rd parties. But, defining what is a confidential information is a matter of law and, therefore, the Korean court does not always follow the definition which an employer had been set in their internal documents.
The Korean court has well-established precedent that the confidential information should be (more…)
Classifying a Foreign Incorporated Corporation as a Domestic Corporation for Korean Tax Purposes: “Actual Business Management Place” Rule
When a foreign incorporated company does a business in Korea, it is very fundamental to determine whether the company is a domestic or a foreign corporation for Korean tax purposes. A major difference in tax liability is that, in principle, a foreign corporation is liable for taxes only on the incomes generated in Korea rather than a worldwide income.
In this regard, the Corporate Tax Ac of Korea(“CTA”) defines a “domestic corporation” as a corporation with its headquarter, main office, or actual business management place located in Korea, and a “foreign corporation” as an organization which has its head office or principal place of business in a foreign country. What makes distinguishing domestic corporation for a foreign corporation under CTA difficult and challenging is the meaning and application of the term of “actual business management place” set forth in CTA. For example, in a case decided by the Supreme Court of South Korea in 2016, a Singapore incorporated company had challenged the Korean tax authority’s decision that its actual business management place was in Korea.
The Singapore company had a wide variety of international business portfolio and among them was a trading foreign issued corporate bonds including a Korean corporate bond. The Korean tax authority decided that the company’s actual business management had taken place in Korea after finding the facts that the company had a liaison office in Korea, one of the directors was residing in Korea and financial documents relating to the Korean business was stored and managed in Korea. And this (more…)
[Q&A] Can I Enforce My Washington State Child Support Ruling in Korea?
(Question) I have a question regarding my current situation with my ex-husband. He is a Korean national and working there in South Korea. I lived there until 2014 when I came back to Washington and filed a divorce complaint here. Since then he has refused to speak with me. This year my US lawyer duly served him with the paper but he just kept ignoring it. At any rate, I got a divorce decree and child support ruling for my baby this April. Now I am wondering how I can enforce my US ruling in Korea, knowing that he is living a luxurious life and feels that he can just ignore his child and the responsibilities that come with it.
(Answer) I have to say that there is something unclear in this case. If the court proceedings in Washington(WA) court have been duly made, i.e. (i) the WA court had proper jurisdiction and (ii) he was duly served, you can apply for its execution in Korea. Otherwise, you may initiate the whole process de nuvo in Korea. The second threshold seems to have been met here. Thus, the real issue here rather is the first one.
Please note that the jurisdiction must be acknowledged in the view of Korean law, not the WA law. Thus, even though the WA ruling says the WA court has proper jurisdiction, the Korean court will (more…)
Introduction to the Korean Inheritance Law
[Updated on April 19th, 2020] Under the Korean inheritance law, the inheritance comes to fruition immediately when a person is deceased. The Korean inheritance law, the part V of Civil Act, provides who shall become the inheritor and beneficiary of the property of a deceased person, i.e. estate.
The inheritor and beneficiary, however, shall not always take everything from the estate. There are separate rules and restrictions on the distribution of the estate in South Korea.
In this article, we will explain to you the basic rules and practices of inheritance in Korea.
Who Shall Become the Heirs and How to Distribute the Estate under the Korean Inheritance Law
The basic rule of the Korean inheritance law is that the property of the deceased is distributed according to his or her will. So, a person who is not categorized as an inheritor by law can become a beneficiary of the estate by the decedent’s will.
What if there is no valid will? The Korean inheritance law sets forth the rule of intestate succession. This rule of intestate succession names the beneficiary and the shares of each beneficiary for a distribution purpose.
According to the intestate succession rule, persons become beneficiaries in the following order.
(more…)Seoul Family Court Finally Answered the Paternity Case between a Korean Father and His Kopino Children Abandoned in Philippines – Paternity Actions in South Korea
On May 30, 2014, the Seoul Family Court handed down a ground-breaking decision which recognized the paternity between a Korean male and his children born out of lawful wedlock in the Philippines. The decision marked the first time ever that a Korean Family Court adjudicated on the parentage of so-called “Kopino”, the term for those children born between a Filipina mother and a Korean father out of marriage.
The sociocultural issue surrounding the Kopino has been the criticism that the Korean fathers have abandoned Kopinos by leaving Philippines and providing no supports. In this court case, the story was quite typical. The Korean father met a Philippine woman back in 1997, when he was running a toy manufacturing business in Philippines. In 1998 and 2000, they had 2 children. But he couldn’t marry her, because he was already married to another woman in South Korea. On April 14, 2004, he suddenly left Philippines alone and never contacted his children again. He had never paid any support for his children.
In December 2012, frustrated by the irresponsibility of the Korean father, the children’s mother in Philippines had moved to bring a legal action in Seoul Family Court against the Korean father to establish the paternity of her children. After 15-month litigation, the DNA test confirmed the blood ties between (more…)
What to Expect When Dismissed by Employer in Korea
It is well known that the Korean labor law provides the employees with generous protections when it comes to the matter of disciplinary measures taken by the employer. In this article, we explain what protection is given to foreign employees in the area of termination and other disciplinary actions.
Employment Is Not “At-Will” in Korea
Unlike many other foreign legal regimes, Labor Standard Act of Korea (LSA) requires the employer having five or more employees to establish a just cause in order to exercise dismissal and any other disciplinary actions. In other words, employment is not “at-will” in Korea. (Note: There is a legal concept of no-fault dismissal based on the managerial hardship under the LSA, which requires very strict requirements to execute. This will be the subject of our upcoming article)
Foreign Employees Can Be Protected By the Korean Labor Law Even If the Labor Contract Says Korean Labor Doesn’t Apply
This rule of labor laws shall equally apply to the employment contract between Korean employers and Foreign employees in Korea, and vice versa.
More importantly, this is the case even when the employee working in Korea agrees in his employment contract that the Korean labor law does not apply. That is because the Private International Act of Korea which provides the general principles for the choice of law enables every Korean and foreign employee working in Korea to enjoy the protections under the mandatory rules of the Korean labor law.
Therefore, it is highly advisable that any foreign employee working in Korea and a multinational which has employees in Korea must understand how the Korean labor law regulates the dismissal and under what situation the dismissal becomes a wrongful termination.
What is the Just Cause for Dismissal in Korea?
The LSA does not provide what the just cause exactly means. It is up to the court’s review and interpretation. In this regard, it is firmly established in the Supreme Court’s precedent that (more…)