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Published by Chung & Partners Since 2008


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Rights of a Criminal Suspect during the Korean Investigation Procedures – Self-Advocacy Note Presented by the Seoul Bar Association

Seoul Bar AssociationThe 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


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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


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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 Continue reading


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[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 Continue reading


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[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.

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[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 Continue reading


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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?

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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, Continue reading


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[Case Report] Attorney Wonil Chung Wins for Expat’s Korean Severance Entitlement – Foreign Employers Cannot Circumvent Severance Liability through a Contract Manipulation

There are so many foreign expats working in Korea.  As you know well, Korean labor law recognizes a severance liability of all employers in Korea regardless of the size of their business and also the nationality of the employee(check here as to how the severance pay under Korean law is recognized and operates).  This also applies to foreign employers such as Korean branches of foreign companies.  The problem is that some foreign employers are ignorant of their severance liability under Korean law.  Even further, some foreign employers try to evade their severance liability.  Sometimes they provide wrong information such as “foreigners are not entitled to the Korean severance” to their staffs, designate a foreign law as the governing law of their labor contracts, and have their staffs in Korea enter into the employment contract with their non-Korean entity such as a head office in the U.S. or a Singapore branch.  Those attempts, however, are all meaningless in a sense that regardless of those, they are still liable for the severance pay.  Actually, we have represented foreign employees for their Korean severance claim against the Korean branch and recently we won the case.

This case involved the expats working as ship inspectors in Ulsan Gorgon project.  We filed the severance suit on behalf of Continue reading