Category: General Practice

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그림 2In 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 right of free and unrestricted access to the (more…)

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법원마크A while ago, we posted an article about the recognition and enforcement of the 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 the foreign country where the judgment was issued.

Korean court reviews this issue on a 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 actual precedence in the foreign court that a Korean court judgment had been 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, the Korean court found that the New South Wales law required the Australian court to review the merits of the foreign judgment in order to recognize it.  This was a serious conflict and deviation from the Korean legal stance.  According to the Korean rules, 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 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, (more…)

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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.

Concluded in October 1980, the Hague Child Abduction Convention is a multilateral treaty aiming at the prompt return of wrongfully removed or retained child from one contracting nation to another.  Under the Convention, any person or institution claiming that a child has been removed or retained in breach of custody rights may apply to any other contracting nation for assistance in securing the return of the child.

As with the Convention entering into force on March 1, 2013, South Korea enacted subsequent domestic legislation concerning the implementation of the Convention.  Under the new legislation, the foreign spouse who is the citizen of the contracting nation of the Convention can make an application to the Minister of Justice of South Korea for the assistance of the return of a child wrongfully abducted to South Korea.  The case asserting the return of the child pursuant to the Convention is under the exclusive jurisdiction of the Seoul Family Court.  The court may issue a preliminary injunction to maintain the status quo.  Also, the court may dismiss the application for the return of the child when, among others, it has passed 1 or more years since the abduction and the child has already adjusted herself into the current environment.  The person who (more…)

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그림 2A distributor from the U.S. entered into a distributorship contract with Korean supplier (exporter) for certain goods.  Of course, the U.S. distributor was thinking to resell the goods in U.S. market for a markup. But the problem broke up after the contract was duly singed and executed.  With no reason, Korean supplier suddenly refused to sell the goods and rescinded the contract.  Due to this unexpected turmoil by the foreign supplier, the U.S. distributor could not properly perform the reselling deals with the local warehouse stores, which the distributor had thought very lucrative. There would be no doubt that the act of Korean distributor constitutes a breach of distributorship agreement. But, the U.S. distributor did not pay anything, yet.  The only loss they encountered was they lost a good deal with 3rd party by reason of the Korean supplier’s breach of contract.  Now, the U.S. distributor tries to recover damages and loss of profits from the supplier in Korea which they suffered from the failure of the reselling deal with the local warehouse stores.  In this case, can the U.S. distributor prevail in Korean court and under Korean law?

The key legal issue would be whether the Korean supplier knew of the fact that the distributor had completed their negotiation with 3rd party for the resale agreement.  According to the ruling from the Supreme Court of South Korea, if the supplier knew of the fact, the supplier is liable for the distributor’s loss relating to failure or non-performance of the resale agreement with 3rd party.  By contrast, (more…)

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Q) I have a friend who is living in New York.  He is a US Citizen who has resided in New York for several years. His wife is from South Korea, but they have not seen each other since 2009. I don’t believe there is any animosity; he just wants to file for divorce since they are no longer in contact. My friend has not been able to get in contact with her for some time, and her family is unsure of her whereabouts as well. The parties were married in South Korea. My friend has been residing in New York so he can file here for divorce; however I am concerned about having proper service there in Korea, especially since we are unsure of her whereabouts. I believe it may be beneficial for my friend to contact a Korean Attorney. I also need to make sure that his wife did not already file for divorce in South Korea or else us filing her is a duplication of services.

A) If your friend is unable to locate his wife in Korea and concerned about the issue of proper service when filing for divorce in New York, he could have an idea to file for divorce in Korea.  In a case where the plaintiff does not know the whereabouts of the defendant, the Korean court issues a divorce decree in ex parte.   (more…)

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In September 2012, Chung & Partners successfully advised a Korean real estate development company(the “Company”) in connection with a project financing for the land acquisition, development and construction of commercial building to be built in downtown Seoul.  The financing package enabled our client to receive funds in the amount equivalent to USD 140,000,000.  Thanks to this transaction, the Company has successfully launched the project.

Our attorney Mr. Wonil Chung acted as counsel for the Company and provided legal advice on every aspect of the deal from structuring to documentation.

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We have received questions regarding this issue quite often.  Actually our office had taken a civil case arising out of termination of marital engagement between Korean and non-Korean, and successfully defended our client from civil liability.  So we think it is a good time to look into what happens in this kind of legal dispute and its legal implication.

Firstly, it must be mentioned that, under Korean law, if a matrimonial engagement is duly made, no party can legally terminate or rescind the engagement without justifiable causes.  This, however, does not mean the engagement shall be enforced regardless of the objection from the other party once the engagement agreement was made.  Rather, it just means if one party terminates the engagement without cause, he or she is obliged to pay monetary compensation to the other.

Then what are  the “justifiable causes” to terminate the engagement?  The law sets forth justifiable causes as follows:

  1. If one of the parties has been sentenced to punishment of not less than suspension of qualification;
  2. If one of the parties has been adjudicated as incompetent or quasi-incompetent after (more…)

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Our attorney, Wonil Chung, Esq. was invited to speak on the entertainment law practice at the 20th Annual Conference of International Association of Korean Lawyers (IAKL), which was held from September 13 to 16, 2012.

At the conference session titled “Entertainment Law Practice”, Mr. Chung gave an English presentation in front of U.S. and Korean licensed lawyers and law school students on the various legal issues arising out of the Korean music business, so-called “K-POP” and introduced recent high-profile litigations involving famous K-POP artists such as TVXQ, KARA and big management companies such as SM Entertainment.  He also provided comparative analysis between the laws of South Korean and the U.S.

Mr. Wonil Chung, a Korean licensed lawyer, has extensive experience in advising and representing Korean and non-Korean clients on various issues involving Korean laws such as intellectual property, (more…)

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Let’s assume a creditor has a monetary claim against a debtor in Korea but the debtor refuses to pay it.  The creditor would proceed to file a lawsuit to get a judgment to collect his claim.  Unfortunately, however, the chances are that knowing the complaint was filed, the debtor would try to conceal or transfer his assets to evade from the liability under judgment.  This shows why provisional attachment is highly required to secure the judgment effectively.

Read More: Korean Lawyer Explains Debt Collections In South Korea – Overview

Provisional attachment is a judicial measure available to anyone who has a monetary claim to lock down certain assets.  It, depending on the type of court order, prevents the debtor from selling assets or enables the creditor to secure his interest in the debtor’s asset regardless of the sale by the debtor, until the court issues a judgment on the merit.

The creditor can, and usually does, seek a provisional remedy before she files a complaint on the merit.  So, this is a very powerful weapon for the creditor.  For example, as many Korean creditors do, if the creditor succeeds in putting a provisional attachment on the debtor’s bank account, the debtor would not be able to use the money and could face several penalties regarding its banking/financing transactions with the bank.  This could heavily deteriorate the ability for a small com­pany to con­duct business, which makes the debtor (more…)

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There have been disputes as to whether Digital Rights Management(DRM) does violate competition law.  By using a DRM, the company can tie the playback of certain digital files to its own IT device.  The problem arises when the company has a dominant market position, because it entails an argument from competitors that the company has abused its dominant market position to distort a free competition at the market.

In November last year, the Supreme Court of Korea firstly issued a ruling addressing this issue.  The case dates back to 2006, when Fair Trade Commission(FTC) of South Korea ordered SK Telecom, the largest mobile carrier company and music download service provider, to lift up a DRM which had prevented the purchasers of MP3 mobile phone of SK Telecom from playing MP3 files downloaded from other online music store that SK Telecom does not operate.  SK Telecom had appealed the FTC’s decision to the court.

At the heart of this lawsuit lies the issue of whether SK Telecom’s use of DRM does constitute an abuse of its dominant market position under Korean Competition law.  In this regard, the Monopoly Regulation and Fair Trade Act(MRFTA) of Korea provides that any market dominant enterpriser shall not commit an act of either (i) unreasonably interfering with the business activities of other enterprisers or (ii) unreasonably doing considerable harm to the interests of consumers.  The FTC found SK Telecom’s using a DRM (more…)