Here is an interesting article. It addresses interpretation and legal translation services for foreigners in the Korean courtroom. As the number of lawsuits in which foreign nationals are involved is increasing, the interpretation issues are becoming important more and more.
The article said a total of 1,936 criminal trials linked to foreigners were held in 2005. More than 1,300 criminal cases were handled during the first half of 2007. The Suwon District Court holds 33 volunteer language specialists in 13 languages (more…)
The Securities-related Class Action Act: Overview
Korea’s Securities-related Class Action Act(hereinafter the “Act”) has been effective from January 1 2005. Currently the Act covers all companies whose securities are listed on the Korea Stock Exchange or registered with the Korea Securities Dealers Association.
There are four causes of action under the Act: (i) damages for false information in a securities report or prospectus; (ii) damages for false information in business reports and semi-annual and quarterly reports; (iii) damages for insider trading or price manipulation; and (iv) claims against auditors.
Damages are calculated in accordance with the Securities and Exchange Act(SEA) and other existing laws. For example, under the SEA, damages caused by false information are calculated by the acquisition price minus (i) the market price at the closing of the courtroom arguments, or (ii) if disposed of earlier, the disposition price. If damages are complex to work out, however, courts may use sampling, averaging, statistical or other rational methods.
In certain cases, the burden of proof of the lack of causal connection between the falsity and damages will fall on the defendant. Damages will then be reduced by the portion that is proven as unrelated to the cause of action.
Class certification requires (i) at least 50 class members, with the total number of their shares constituting 0.01% of all issued and outstanding shares of the company; (ii) commonality of legal or factual issues; (iii) class action being an efficient and suitable means for protection of rights or interests of all members; and (iv) the complaint being properly drafted and not defective. The representative member should be one will the largest stake and capable of fair and proper representation.
The Act also includes provisions on opt-out and preclusion effect on members who did not opt out, (more…)
On April 3, Seoul Central District Court ruled that Pandora TV infringed copyright of Japanese animation by letting its members upload unauthorized animation clips onto Pandora TV’s channel(shared folder). Pandora TV is a famous Korean internet UCC service provider, something like YouTube. Its members can upload any files they want, so bunch of copyrighted movies, animations, dramas have been uploaded without permission and anyone who visits its web page can view the copyrighted materials, even though he or she is not logged in.
The court addressed that the Pandora TV has recognized copyright infringements of its members and facilitated and induced it by giving “cyber money or coin” to the members who uploaded much more items. Also the court pointed that Pandora TV has had an advertising revenues from any views.
Also the court ruled that the individual members are held liable for simply making copyrighted materials (more…)
Today it was reported that 2,078 customers of Auction(the “Company”), the largest on-line shopping mall which has almost 18,000,000 people as its registered users, filed a lawsuit against the Company alleging it accidentally had leaked millions of files containing personal information about its customers.
Previously on February, the Company announced its sever had been hacked by allegedly a Chinese hacker. However the Company has not cleared up to what extent personal information had been leaked by the accident. Not satisfied by the Company’s handling, the customers jumped into a lawsuit. The plaintiffs are seeking 2,000,000won(approximately 2,000 US dollars) per person.
There has been several internet personal information leakage cases. For example, (more…)
Recently we got a question from a foreigner. She was wondering if she could take any legal action against her Korean ex-employee who harassed her by spreading false information about her and telling the customers not to do a business with her.
From a perspective of Korean Criminal law, currently there is no general legislation on regulating the harassment or stalking. The respective laws have its own regulations on which behavior constitutes a certain crime and what remedies the harassed party is entitled to seek.
Generally speaking, a person who defamed another by publicly alleging facts (false or even true) shall be punished by imprisonment or imprisonment without prison labor for not more than 2 years or by a fine not exceeding five million won according to Criminal Act of South Korea.
Notably, any person who sends out letters or text messages inflicting fear or apprehension to another person repeatedly shall be punished by imprisonment for not more than 1 year or (more…)
Recently we got a question about the definition of “sexual harassment” under Korean law.
Article 3-4 of The Framework Act on Women’s Development defines a “Sexual Harassment” as “sexual comments and behaviors incurring sexual mortification and repugnance, or giving disadvantages in employment for not accepting sexual advances or other request, on the part of employees in public sector, employers, or workers, using their status or job position related to jobs or employment relations, etc.”.
In order to be liable for a sexual harassment, the person does not necessarily have to have a sexual motive or intent. It can be inferred and proved by totality of situation such as the relationship with the person, place and circumstance of the behavior, content of the clear and referred response of the behavior, content and degree of the act, whether the act is ephemeral or short-timed or continual. There must be an act that provokes sexual mortification and repugnance to an average person who are in the similar situation generally, and from that the average person should feel the sexual mortification and repugnance. Therefore, a sexual harassment can not be established not merely for the reason that counterpart felt sexual mortification and repugnance (more…)
According to article 5 of the Private International Act(“PIA”) of Korea, a court shall investigate and apply the contents of the foreign law designated by the PIA on its own initiative. However, sometimes it’s not easy for Korean court to confirm the right meaning and contents of foreign laws.
In this regard, the Supreme Court of South Korea has ruled as follows, in a case where the both parties had different interpretation of relevant Polish laws in deciding who’s the real owner of a ship registered in Poland(2006da5130):
“In confirming the content and interpreting the meaning of foreign laws and regulations to be applied to legal relations having foreign elements, the interpretation and application shall be made in accordance with the meaning and the content through which the foreign law is actually interpreted in the home country, and the judgment by the highest court of the home country, unless under special circumstances, shall be respected, but if it is impossible to confirm the content because of the insufficiency in submitted data in the process of a suit about (more…)
A Korean cosmetics Company filed a lawsuit against its model, Ivy, a K-pop female singer, alleging her lies and scandal-plagued private life has damaged its brand images.
The cosmetics company had hired Ivy as its advertisement model last April, but after then, Ivy got a scandal with her ex-boyfriend who allegedly had attempted to blackmail her with a revealing video clip showing him with the K-pop star. Ivy has stopped her career until now and the cosmetics company claims it constitutes a breach of contract under which Ivy is required not to harm the image of the company or its brand with any scandalous or improper behavior. You can read the news article here.
There was a similar case between a top T.V star Choi, Jin-Sil, and its advertiser. The company claimed that (more…)
The Supreme Court of Korea ruled on February 28 in favor of LG Household and Health Care of Korea(“LG Household”), a domestic diaper manufacturer, saying it did not violate a patent of the U.S. firm Kimberly-Clark Corp.
The Supreme Court held that the disposable diaper with a leak-preventing flap produced by LG Household did not infringe on a patent owned by Kimberly-Clark and its local affiliate Yuhan Kimberly.
It was a long 8-year fierce lawsuit between two giants. Kimberly-Clark (more…)
Recently I got a question from a U.S. citizen living in the states. He has a Korean wife and a son. He’s currently living separately from the wife and son in Korea. The wife refuses his contact with the kid. He tries to get the custody but is not sure about filing a divorce law suit right away.
A child custody has two meanings in Korea. One is a right to make decisions for the child (so-called parental authority) and the other is right to foster the child.
Getting divorced is not necessarily required to have the “right to foster” under Korean law. He can request the Korean Family Court to designate him as the sole child fosterer, maintaining his marriage. The court will consider certain factors such as child’s age, past and current life style, occupation and standard of living of both parties and so on in deciding who is going to be a right fosterer in terms of the child’s welfare.
Regarding the expense of bringing up a child, if he is designated as a sole fosterer, the wife shall pay the certain proportion of total expenses of bringing up a child.
In a case where he fails to be designated as a sole fosterer by the court, he shall be entitled to have a visitation right according to Korean law. He can request the court to prevent his wife from interrupting his regular visitation to his (more…)
In January 31, the Seoul Central District Court ordered the Samsung Group to repay more than 2.33 trillion won ($2.46 billion) to the 14 creditors of its defunct Samsung Motors, which was the country’s biggest-ever financial civil lawsuit. Samsung Group said yesterday that it will appeal that court ruling.
Samsung Motors applied for a court-administered debt restructuring program in June 1999, and Chairman Lee Kun Hee announced his plan to inject private money. Two months later, Samsung signed a deal with the creditors to cover a 2.45 trillion won debt by the end of 2000. Under the agreement, Lee handed over his 3.5 million shares of the unlisted Samsung Life Insurance Co. to the creditors and promised to list the company. However the insurance firm never went public, and creditors were unable to convert all their share to cash due to the large volume. Creditors filed a lawsuit in December 2005, claiming 5 trillion won including penalties.
One of the biggest issues on this trial was the validity of the agreement between Samsung Group and the creditors. Samsung Group alleged that the agreement is void because it was entered under duress. However the court rejected it.
As I’m a lawyer, it was very interesting who would represent Samsung Group and the creditors. There (more…)
Recently we got a question about whether the Korean court permits a divorce filing even when both parties are foreign nationals. The questioner was in a situation where she lived in Korea but the spouse did not. Here is a short and general answer.
In principle, the Korean court accepts international divorce filing only when the defendant has a residence in Korea, even though there could be some excepts to this rule of thumb. The Supreme Court of South Korea, however, held that as an exception to this general rule the court should accept the divorce filing when (i) the plaintiff fails to locate the defendant or (ii) the defendant who has no residence in Korea answers the lawsuit filed in a Korean court.
Thus, if you do not know where the spouse currently lives but still need to get divorced, you can file a divorce lawsuit to a Korean family court. This is quite helpful to the foreign people who had been married to Korean persons but moved back to their home countries with the marriage not working well. Or a foreign person living in Korea whose spouse, who is also a foreigner, left Korea permanently can benefit from this judicial policy of Korean family court. In this regard, our office had represented a Canadian male and successfully got a divorce decree from