Category: General Practice

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On February 10, Seoul Central District Court ruled that Mr. Jin-Young Park, one of the most influential music producers and composers, had plagiarized another Korean composer’s song.  The defendant Mr. Park is well-known as the co-owner of JYP Entertainment, one of the top Korean music production companies(Gi-Huek-Sa).  He has produced numerous albums for famous K-Pop artists with great successes including, but not limited to, Rain, G.O.D and Wonder Girls.

The plaintiff Mr. Shin-Il Kim, a K-Pop composer, had filed a lawsuit against Mr. Park on July 2011, claiming Mr. Park’s song titled “Someday”, sung by IU, had infringed his song titled “To My Man” and he is entitled to a compensation of approximately 90,000USD.

It was reported that the judge recommended a settlement to the parties before issuing the ruling, but the both parties objected to it.  And finally the court sided with the plaintiff.  The Court found that four bars from the chorus of the defendant’s song is substantially similar to that of the plaintiff’s song which constitutes a copyright infringement and ordered the defendant to pay approximately 20,000USD to the plaintiff as a remedy.

Under Korean copyright law, a claim for plagiarism and copyright infringement is established when the defendant had access to the copyrighted work of the plaintiff and there exists a substantial similarity between the two works.  With regard to the first element, (more…)

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Q) I filed for divorce in Ontario, Canada.  My husband lived in Canada and he was duly served with the court’s documents.  I will have a final divorce ruling from the Canadian court including child support and alimony order soon.  But the issue is he will probably leave Canada and head to South Korea after the ruling is issued.  Will the Korean Courts recognize the Canadian court order in order to enforce his performance of child support and alimony payment?

A) There is a case where the Korean Supreme Court recognized and approved the Canadian court’s divorce/asset distribution/child support/alimony order.  That order was issued from the Superior Court of Justice in Ontario.

As a matter of law, the Korean court recognizes a foreign ruling pursuant to the rules of foreign judgment recognition: (i) the foreign court has jurisdiction over the case in perspective of Korean law, (ii) the defendant was duly served, (iii) the ruling of the foreign court does not violate the social order of South Korea and (iv) there exists a mutual guaranty for recognition of rulings between the two jurisdictions.

For the last element, the Korean Supreme Court clearly declared that South Korea and Ontario have a mutual guaranty.

What is more important in this ruling is that the Supreme Court recognized the foreign court’s alimony order.  Under Korean divorce law, there is no legal concept of alimony in a divorce.  Therefore, some may argue that as the alimony is not the legal right established in Korea, recognizing the foreign court’s alimony ruling in Korea would violate the social order of  South Korea.  But, (more…)

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It was reported that last month Apple’s South Korean office paid $945 of compensation to one of South Korean iPhone users for the breaching of privacy by the controversial iPhone user location tracking.  Here is the detail from Reuters.

By the way, some news media reported that this was a ruling from a Korean district court.  I, as a Korean lawyer, think that statement is half right and half wrong.  Basically it is true that the court issued a ruling which ordered the Apple Korea to pay $945 to the user.  But this was not a formal trial case, but a Request for a Payment Order case.  Payment order is a more convenient & simplified legal procedure for claimant to get a judgment from the court compared to a formal lawsuit.  Once a request filed, the Korean court does not question the debtor (in this case, the Apple Korea) and issue a Payment Order within 2 or 4 weeks (in certain courts, within a few days). This payment order, a sort of ruling, asks the opposing party to choose whether to admit the claim as written on the request or to make an objection.  If no objection has been raised from the opposing party within 2 weeks, then (more…)

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Q) I wish to file a divorce from my wife.  Our relationship ended in practice earlier this year and she returned to Korea in August. We were married in Korea. I wonder how can I file for our divorce as she is in Korea but I am not living in Korea. I would prefer uncontested but would go with a contested divorce if necessary. But I am living in the UK. Can you tell me what process I should pursue?

A) At the outset, as your wife lives in Korea, you can file for divorce to a Korean Family Court.  Even if your wife does not have a Korean nationality, it is still the same. But you probably need to hire a Korean legal counsel who can represent you in the court, as you are not living in Korea and more importantly you might not be familiar with how the divorce works in Korea. With that said, if you hire a Korean divorce attorney, you are not required to come to Korea nor to attend the court.  Your Korean divorce attorney will handle everything for you.

The next issue will be which nation’s divorce law will govern your case, when you file for divorce in Korea.  If your wife is a Korean, then the Korean divorce law shall be the governing law.  If your wife is a UK citizen, then the divorce law of the UK shall apply.

When the Korean divorce law becomes the governing law, in order to get a divorce decree, you have to show some types of justifiable causes for divorce under Korean law such as domestic violence, unchastity, etc.  Not surprisingly, the Korean court quite often issues a divorce ruling when it founds the marriage was irretrievably broken.  Common grounds (more…)

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There exist growing needs for consumers to watch TV broadcastings from any place and by any way they want.  In response to these needs, several new business models have come into; for example, an Internet TV recording and/or streaming service, RS-DVR, SlingBox and any other place/time-shifting devices hosting services.  But the problem is that copyright holders, the TV broadcasting companies, are fiercely objecting to these new business models contending they are infringing their copyrights.  It is quite interesting for an IP lawyer to see how the courts from various countries have found the answer to this legal issue.

Lets’ start with the situation in South Korea, where I’m practicing the law.  Actually there have been two cases related to this issue; Ental TV case and MyTV case.  Ental TV was an Internet-based TV recording service.  The registered users paid some amount of fees to the service provider and the service provider recorded TV broadcastings on its server at the request of the individual users with its automated software program, then converted it into the PC file format and sent the file to the user via Internet.  On April 30, 2009, the Seoul High Court ruled this Ental TV service infringed copyright of the TV Broadcasters.  The court found that it was the service provider, not an individual user, who recorded and copied the TV program, because the service provider owned and managed all the facilities used in recording the TV program.  Also the Court added that even though it was the individual user who copied the TV program, the very act of copying (more…)

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Under the Korean Civil Procedural Law, every foreign document should be submitted with its Korean translation in order to be duly admitted as evidence. The need, however, for legal translation is not confined to the realm of litigation. You may need a translation of a critical business contract, a financial statement, patent/trademark documents, birth/marriage certificate, or court’s judgment. With that said, when you face up with any legal issue involving a Korean law or a Korean party, the document translation into or from Korean is somewhat inevitable.

It is needless to say that absolute accuracy is called for because mistranslation of a passage or even a word could lead to negative legal ramifications. That is why the legal translation should be performed by legal professionals equipped with judicial and legal knowledge and experience.

We have seen people just go to ordinary translation service providers and end up with problematic translations. When the translator does not understand the legal implication and purpose of the document, her translation cannot deliver the true meaning of the document and could even deteriorate the value of the document.

The competent legal translator should (more…)

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There have been an increasing conflict between the free expression and the copyright protection in relation to the matter of a UCC, a user-created content, posted on the internet site.  For example, in the United States, there was a legal dispute concerning a 29-second YouTube video clip of a toddler dancing to Prince’s “Let’s Go Crazy”. In that case, the copyright holder to the Prince’s song alleged the YouTube video clip explicitly infringed the song’s copyright.

Almost the identical lawsuit had been filed in South Korea. In Korea, a father uploaded to his blog operated by Naver, the largest Internet portal site, a video capturing his 5 year-old daughter singing and dancing to a famous Korean female singer(Dambi Sohn)’s song, titled “Crazy” – what a coincident that two cases even had very similar song titles, “Let’s Go Crazw” and “Crazy”.  Just soon after the video clip was uploaded, it was taken down by the portal site operator upon a request from the copyright holder to the song alleging the video is a copyright infringement as it was used without permission. Then the father filed both a declaratory lawsuit claiming that uploading the video did not constitute a copyright infringement and a monetary compensation lawsuit for mental distress which he suffered from the unjust take down of the video he’d made.

On February 18, 2010, the Seoul Southern District Court sided with the father. The court ruled that uploading a video at issue did not constitute a copyright infringement because it fell within the scope of “the quotation from works made public” under Article 28 of the Copyright Act, which (more…)

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Q) I have some questions about marriage and divorce law in Korea regarding two non-Koreans living in Korea.  Can they divorce and re-marry in Korea?

A) The Korean court hears an international divorce lawsuit basically if the defendant resides in Korea.  So long as the defendant resides in Korea, the duration of his residence does not matter. Even if the plaintiff does not reside in Korea, she can file a divorce lawsuit to a Korean court. If the defendant does not reside in Korea, the divorce lawsuit can be accepted only when the plaintiff fails to locate the defendant or the defendant answers the lawsuit filed under the Korean court.

Regarding the governing law, the divorce case shall be governed in the following order:

  1. the same law of nationality of both spouses
  2. the same law of the habitual residence of both spouses
  3. the law of the place where is most closely connected with both spouses.

If one party is a Korean national having a habitual residence in Korea, notwithstanding the foregoing, the law of South Korea will be the governing law.

The Korean court shall decide (more…)

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Q) Most of my friends say if you’ve got separated for many years, it is easy to apply for a divorce.  Is that true?

A) Basically being separated for many years is, by itself, not a justifiable cause for a judicial divorce under Korea divorce law.  The key issue will be why both of you have been separated.  If it is because of your husband’s violence and/or maltreatment, you’re surely entitled to a divorce decree from a Korean Family court, even if you’re separated for only 1 day.  On the contrary, if you’ve maliciously (more…)

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Q) I am on an F2 visa and teaching for 28 months at the same Hagwon. The contract between myself and the owner is basically a few written lines, just mention salary and final teaching date. There is no mentioning of the severance payment. According to the labor law, am I entitled to severance payment even though it is not mentioned in a short contract?

A) If and to the extent that you are legally regarded as an employee under Korean labor law, you are entitled to a severance pay under Korean labor law.

The term employee under the Korean labor law is someone who provides labor pursuant to his or her employer’s instructions or directions in exchange for wage compensation.  The important factors for classifying someone as an employee are, (more…)