Ask Korea Law

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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.  The Article 30 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 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 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, unless an employee’s specific conduct is something that makes 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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[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 the severance pay under Korean law is recognized and operates).  This also applies to the foreign employers such as Korean branches of foreign companies.  The problem is that some foreign employers are ignorant of their severance liability under the Korean law.  Even further, some foreign employers try to evade from 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


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[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 Continue reading


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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. Unlike many other foreign legal regimes, Labor Standard Act of Korea (LSA) requires the employer of five or more employees to establish a just cause for a dismissal and any other disciplinary actions.  In other words, the 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) 

This rule of law shall equally apply to the employment contract between Korean employer and Foreign employee 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 in Korea enables every Korean and foreign employee working in Korea to enjoy the very 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.

Then 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 the decision thereafter.  That said, it is firmly established in the Supreme Court’s precedent that Continue reading


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[Q&A: Labor Law] I Work for Korean Branch of U.S. Company. My Employment Contract Provides U.S Law Shall Apply and Severance Pay Is Not Granted. Can I Still Get a Severance Pay Pursuant to Korean Labor Laws?

Question) I am an American citizen working in South Korea.  Originally I was working for a U.S. company incorporated in the state of New York, but 3 year ago I was seconded to the Korean branch of my U.S. company, and have been working for the branch until now.  When I was seconded, my new employment contract provided that the New York state law shall apply to my employment relation in Korea.  Now, my employment contract is expiring and I would like to know whether I am entitled to the severance pay under the Korean labor law.  I know my employment contract and my company’s policy do not provide the right to severance pay.  But, as I have been working in Korea for 3 years, I am wondering if the statutory rights of severance pay under the Korean labor law could be given to me.

Answer) The answer is Yes.  You are entitled to the severance pay under the Korean labor laws.  (check here as to how the the severance pay under Korean law is recognized and operates)  This answer could be accepted quite surprising considering the fact that the parties had previously agreed (i) the Korean labor should not apply and (ii) the severance pay should not be awarded.  How come the Korean labor law intervenes in the parties’ employment relation which is seemingly irrelevant to the Korean law implications other than the fact that work place of the employee is in Korea?  The answer lies in the provisions of Private International Act of Korea which provide the general principles for the choice of law in Korea.

When a legal relation has certain foreign elements, the court must decide which jurisdiction’s law shall apply to interpret that legal relation.  In Korea, the Private International Act provides the general rules and principles for the governing laws of the various types of legal relations.  Specifically, the Act provides that if the employer and employee agree to their own choice of law, the employment contract is governed by the law chosen by the parties.  But, this does not mean the parties can freely determine which law and regulations apply to their employment relation.  It is true in Korea that the party autonomy is a general principle of governing laws, but party autonomy is subject to limits imposed by the overriding public policy and mandatory rules.  Accordingly, Continue reading


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Provisional Attachment of Assets under Korean Law – How to Secure Your Monetary Claim in Korea

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 judgment to be made later.  This shows why provisional attachment is highly required to secure the judgment to be obtained.

Provisional attachment is a judicial measure available to anyone who has a monetary claim to lock down certain assets to keep the debtor from selling or giving them away 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 Continue reading


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Introduction to the Deportation or Removal Order and How to Appeal the Order in Korea

그림 2In South Korea, the immigration office may remove or deport from South Korea any person who breached the Immigration Control Act(“ICA”) of South Korea.  Any person who is released after receiving a sentence of imprisonment without prison labor or heavier punishment may be deported by the deportation order as well.

When the immigration officer reasonably finds a foreigner falling under the requirements for the deportation and risk of her running away, the officer can detain the person with approval from the head of immigration office.  The duration of detention cannot exceed 10 days, which can be renewed up to 10 more days.  During this detention, the officer interviews and decides whether to deport the individual or not.

When the immigration officer decides to deport a foreigner, the officer shall deliver the deportation order to the foreigner and immediately take action to make the person leave South Korea.  But, when the individual files a claim for refugee protection, the deportation order cannot be executed until the refugee claim is decided by the Korean authority.

Then, can you appeal the deportation order issued by the Korean immigration office?  Yes, you can.  There are two possible ways to stop the deportation.  First, Continue reading