There are so many seconded workers in Korea. The secondment of an employee creates various legal issues in Korea. One of them is the seconded employee’s severance pay in Korea. The Korean labor law recognizes the severance payment liability of all employers having business in Korea. This doesn’t ask the nationality of the employee. (Please check here as to how the severance pay under Korean law is recognized and operates) The problem is that some foreign companies are ignorant of their severance pay liability under Korean law. Even further, some foreign employers try to evade their severance liability intentionally.(more…)
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 (more…)
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. In this article, we explain what protection is given to foreign employees in the area of termination and other disciplinary actions.
Employment Is Not “At-Will” in Korea
Unlike many other foreign legal regimes, Labor Standard Act of Korea (LSA) requires the employer having five or more employees to establish a just cause in order to exercise dismissal and any other disciplinary actions. In other words, 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)
Foreign Employees Can Be Protected By the Korean Labor Law Even If the Labor Contract Says Korean Labor Doesn’t Apply
This rule of labor laws shall equally apply to the employment contract between Korean employers and Foreign employees 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 enables every Korean and foreign employee working in Korea to enjoy the 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.
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 interpretation. In this regard, it is firmly established in the Supreme Court’s precedent that (more…)
Question) I am an American expat working in South Korea. Originally I was working for a U.S. company incorporated in the state of New York, but 3 years 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. Expats are entitled to severance pay under the Korean labor laws. (check here as to how the severance pay under Korean law is recognized and operates)
This answer could sound 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? The answer lies in the provisions of the Private International Act of Korea which provides 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, 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.
In 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…)
Question) I am a US citizen and have been living with my Korean boy friend for about 3 years in South Korea. We loved each other and agreed to marry, but we were so busy to have the legal process timely done and most importantly we found no need to do that. We’ve just thought each other as husband and wife and so do our friends and families. While living together, he ran an Internet business and made a quite large profits from there. I took care of every housework and sometimes I helped his business work, too. But, recently I found he had cheated on me. I was so shocked and got separated from him. My concern is whether I have any right to the assets accumulated during our cohabitation, like a property division right between divorcing couple.
Answer) Under Korean law, in order to establish the marital relationship, the parties must report their marriage to the government. Just having a wedding ceremony is not enough. If the parties live together considering themselves each other’s spouse without reporting the marriage, it is called a de facto marriage. A de facto marriage is not a legal marriage. Thus it is not entitled to the same level of legal protection as the legal marriage. But, when it comes to the resolution of the de facto marriage relationship, the Korean law applies almost identical protection to the parties.
First, the Korean law grants the right of property division to each party of the de facto marriage. Each party is entitled to the share of the assets acquired during the relationship pursuant to his or her contribution. Even if the party is solely responsible for the relationship breakdown, the person is still entitled to. Second, a party can seek a consolation money against the other party, if the other party is solely responsible for the relationship breakdown. The amount the party can seek is decided by various (more…)
Let’s assume you file an action for a money judgment in the US court or any jurisdiction other than South Korea, and the defendant has significant assets located in South Korea. In that case, you might need to consider putting a provisional attachment on those assets in order to prevent the defendant from hiding or liquidating the assets to render the judgement ineffectual. Then this situation entails the following question: can a plaintiff in a foreign proceeding apply for a provisional attachment to the Korean court, while pursuing the proceeding in the merit in foreign jurisdiction?
The answer is yes. The Korean court grants and issues a provisional attachment order per the foreign creditor’s application in support of proceedings which have been or are to be commenced in a place outside of South Korea. It does not require the substantive proceedings are to be connected to South Korea. Further, it does not require the defendant to be the resident of South Korea. It just suffices only if the assets are located in South Korea. That said, for example, the US creditor pursuing an action in New York may apply to the court of South Korea for a freezing order on defendant’s bank account in Korean banks to restraint the defendant from dealing with, or disposing of, the funds.
In this regard, There was a case in Korean court where the provisional attachment order against the Korean stocks was issued by the Seoul Family Court as the security for a judgment soon to be obtained in the court of Virginia, USA. The defendant in the US proceeding, which was a divorce case where the plaintiff seek $6,700,000USD for her share of property division, filed an objection (more…)
A 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…)
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…)
A 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…)