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Published by Chung & Partners Since 2008


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Patent License Agreement in Korea – What Happens to Royalty Payment When the Patent Later Becomes Invalidated

Korean Law OfficeThere is no doubt that intellectual property is a valuable asset and parties all around the world are dealing with an arrange of utilizing 3rd party’s intellectual properties.  Sometimes it could be a license 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 compared to other intellectual property such as a copyright to clear this issue because 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?  The Korean Patent Act provides that if a court’s decision invalidating a patent becomes final and conclusive, the patent shall be deemed never to have existed.  Then what happens to the royalty previously paid by the licensee?  Does the licensee can refuse to pay the royalty after the patent gets invalidated and even ask for the refund of the royalties previously paid pursuant to the patent license agreement?  The Supreme Court of Korea said No.
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[Q&A] As a Korean Adoptee Living in the U.S., Do I Have an Inheritance Right to My Biological Father in Korea?

Q) I am a Korean adoptee that lives 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.  Do I have a right to claim an inheritance to his estate?  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 rights?

A) Based on your explanation, I am of the opinion that you are entitled to the inheritance to your deceased Korean father.  The law of your deceased father’s home country shall govern your inheritance claim.  Under Korean law, assuming he is survived by his wife and 2 sons, your inheritance share will be 2/9. (Please click here for a general overview of the Korean inheritance law)

You will need to file 2 suits with the Korean court.  The first one will be a paternity suit and the second one will be a inheritance claim suit.

Actually I have been dealing with a very similar case.  She was adopted to American family when she was young from Korea and asked our office to claim her inheritance to her deceased Korean biological father.  We won the paternity suit Continue reading


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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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[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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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 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