Ask Korea Law

Published by Chung & Partners Since 2008


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Can an Adopted Child Inherit from Biological Parents in Korea?

“I am an adoptee from South Korea to the U.S. Currently I live 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.  Can an adopted child inherit from biological parents in Korea?  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 inheritance rights under Korean law?”

Everything Boils Down to Whether it is Full Adoption or Simple Adoption

A legal child is entitled to inheritance from his/her deceased parent. When the child is adopted, some jurisdictions treat the adoption as disconnecting the legal relationship with the biological parent, and some jurisdictions don’t. We call the former as a full adoption and the latter as a simple adoption.

As you can understand from the general idea of inheritance, an adopted child can inherit from biological parents in Korea only when the adoption is regarded as Continue reading


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(Case Review) What You Should Know about International Inheritance in South Korea – Statutory Share, Contributory Share and Special Benefit

(Case)

I am a U.S. citizen.  I currently have a very complicated inheritance case in South Korea.  My father passed away 10 years ago in the U.S. and his two Korean half brothers in Korea are currently suing my family for my father’s portion as well as my father’s sister’s portion as she passed away many years ago.  They are claiming they want 60% of my father’s portion and all of my aunt.  There is no will left by my grandfather.  They are claiming that they took care of the grandfather who was a Korean citizen.  However, when my father was alive he also sent money regularly to his father and his half brothers but as it was more than 10 years ago I am uncertain how to proceed.

Governing Law Issue

Inheritance gets more complicated when it has some sort of multinational issues.  Here the Korean heirs sued the U.S. heirs at the Korean court.  The deceased was a Korean national and it is probable that the majority of the estate is located in Korea.  That might be one of the reasons why this case should be litigated in Korea, not the U.S.

In an international inheritance case, we first need to find out which country’s law shall apply.  As this case was filed with the Korean court, the Korean court decides this issue pursuant to their own choice of law doctrines.  According to the Korean choice of law, the law of the deceased’s country shall become the governing law.  That means, in our case, the Korean Inheritance law shall apply. (Please refer to this article regarding the basic of Korean Inheritance law)

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(Q&A) My Korean Half Brother Asks Me to Sign Over a Korean Inheritance Document. What Should I do?

Q) I was born in Korea but married a US citizen, moved to the US and am now a US citizen.I learned that my father has passed away in Korea and am looking for some assistance on accepting or renouncing the inheritance.  I was the forth child. After I was born, my parents divorced and the first two children went with my father and the third child and I went with my mother. My father remarried and had three other children. My mother and the second wife are still alive.  I was told that the estate includes property (house) and some savings.  The second wife wants to live in the house until she dies and it sounds like my other siblings agreed.  My half brother with whom I’ve had no previous contact called and said they need my cooperation to proceed.  He asked me to sign some Korean document which I don’t understand. I’m trying to decide whether to accept or renounce the inheritance and how to accomplish either of those in the easiest way possible.

A) Under Korean inheritance law, currently you are the co-owner of the total estate without any registration or report.  Other heirs cannot distribute, dispose of the estate without your consent.

The heirs in Korea might be in a hurry to pay the inheritance tax which might be one of the reasons why he contacted you.  But, you should not give them the power of attorney or any authorization/consent until you have the information you need which includes your deceased parent’s name, Korean residence registration number and the detail of the estate.  If he refuses to provide that, I think that is a red flag.  At least he should let you know the Korean resident registration number, which is Continue reading


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[Q&A] Criminal Charge and Its Legal Implications in Exit Order, Entry Ban and Visa Refusal in Korea

Q) This past weekend I was involved in some altercation with a Korean guy at the local bar.  I pushed him slightly, but he fell down and broke his wrist.  He phoned a police officer and filed a criminal accusation against me.  I am an E-2 visa holder.  What can I do now to help myself?

A) If you are a first offender and had no other criminal record, I don’t think this case becomes a serious one.  However, as you are a foreigner, any conviction could lead to an exit order and an entry ban decision from the Korean immigration office.  Under the current rule, if a foreigner is fined more than 5,000,000KRW for any crime in Korea, the immigration office can issue an exit order and a future visa application and extension could be denied.  It can also result in an entry ban.  Under the rule, the duration of the entry ban is as follows:

  • the total amount of fine for the last 1 year exceeds 5,000,000KRW: 1 year
  • committed any crime more than 2 times for the last 1 year: 1 year
  • the amount of fine is between Continue reading


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Is a Private Adoption Legal in South Korea?

Private Adoption is Legal in South Korea

The answer is yes, a private adoption is legal in South Korea.  There are two types of adoption under Korean legal system.  One is a private adoption and the other one is a foster care adoption.  A private adoption is an adoption which is initiated by a private placement from the birth parent without the involvement of any adoption agency.    The most important distinction of a private adoption is that it is regulated by the Civil Code and it cannot be executed for a child in a foster care or an orphanage.  Any child who is in a foster care or an orphanage (“Special Protection Child”) should be adopted through the government approved adoption agency.  This foster care adoption is regulated not by the Civil Code but by the Act on Special Case Concerning Adoption.

Private Adoption and Foster Care Adoption Are Regulated by Totally Different Legal Systems

Although the two adoptions are regulated by the totally different legal systems, many people often confuse these two.  Like a foster care adoption must be taken care of by an adoption agency, non-foster care adoption, i.e. a private adoption, Continue reading


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Do I Have to Make Any Filing Including Tax Report with the Korean Authority Regarding the U.S. House Gifted by My Korean Parent – Korean Tax Implication of International Gifts

When receiving gifts of money or other property, we should check any tax issues involved.  When the gifts cross the national borders or involve foreign parties, it becomes more complicated.  It could entail an additional filing with a government of the foreign country where the foreign party resides.  And even further, foreign tax liability could arise.  Today, we are going to introduce what report and tax liability the parties should take care of and under what condition, when a U.S. resident receives a U.S located house as a gift from his Korean resident parent.

Report to the Bank of Korea

According to Article 7-46 and 7-44 of Foreign Exchange Transaction Regulation(FETR), when a resident of Korea gifts a real property, which is even located abroad, to any non-resident, the resident(devisor) should report the transaction in advance to the Bank of Korea.

The nationality of the parties doesn’t matter here. What does matter is the place of residence of each party.  The Korean Tax authority (National Tax Service) has an internal rule to apply when Continue reading


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(Q&A) I Want to Know about Annulment and Revocation of Marriage under Korean Law

Q) I am seeking a Korean divorce lawyer for my divorce case against my Korean wife.  She lives in Seoul, Korea.  I am American and live in California.  We had a wedding ceremony in California.  We visited South Korea right after the ceremony to file a marriage report with the Korean local government office in Seoul.  However, things didn’t go well.  She left and we started a separation right after the report.  We lived together only for a week.  She had some bipolar issue and that caused lots of stress to our relationship.  I was not 100% sure when filing the marriage report. I am wondering if I can file for an annulment or a divorce in Korea.

A) First of all, assuming your wife has a habitual residence in Korea, the Korean family law shall apply here.

Under Korean law, annulment and revocation of marriage are recognized.  I think, however, annulment and revocation/cancellation of marriage claims are not easy to be established here.

Under Korean law, the annulment requires a lack of genuine intent of marriage.  It seems, however, that you agreed to file the marriage report, which is the strong evidence that you had a genuine intent of marriage.  Of course, this intent is reviewed and decided at the time of the marriage report, not later. Continue reading


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[Q&A] My Wife Took My Child without My Consent to South Korea. Can I Get My Child Returned?

Q) I am a US citizen who married a Korean wife. We moved to California in 2015 and also had a son the same year.  This year, she suddenly left in April and refused to return home with our son.  It has been 3 months now since I have been able to be with our son and she flat out denies my right to be with him.  I am not abusive nor have I ever been violent towards her or our son.  I have already sent in my Hague Convention Application to the U.S. State Department to get the Hague process started. I would like to know if your firm has handled Hague cases for International Parental Child Abduction and if you have been successful in having the child returned to their country of habitual residence.

A) 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(please refer to our previous article on this subject).

I have dealt with the first Hague international child abduction case at the Seoul Family Court and succeeded in getting the child back to her habitual residence. Continue reading


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[Q&A] You Can Enter into Korea during the Entry Ban Period with a Special Entry Permit from the Immigration Office

Q) I was deported from Korea in 2015. I was given a five year entry ban for domestic violence against my then ex South Korean wife. The sentence I received was 3 years probation. However, I have a young child in Korea, who is taken care of by my ex-wife, but I have been paying the child supports. I would like to visit Korea to see my child but I am very worried that my visa application or entry would be denied by the past record and the entry ban.  My ex wife and I are now in a good relationship and she would provide a supportive letter for me. What is the likelihood that the Korean immigration will allow me to see my son?

A) In principle, a foreigner listed on the entry ban of Korean immigration office is prohibited to enter Korea for some period of time.  There is, however, a special entry permit which can be made during the period of entry ban for some humanitarian reason.  Most common cases are for the family unity purposes.  For example, there was a case where Continue reading


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[Q&A] Getting a Korean Criminal Investigation Records Check Reply While Staying Abroad

Q) I want to know how to get a Korean Criminal Investigation Records Check Reply. For my immigration application purpose, I need to submit this to the Canadian authority (CIC Canada). They said this document must include the “lapsed records”, i.e. all the criminal records database search. I contacted the Korean embassy in Toronto and they only issue normal Police Record which is not accepted by the CIC. They told me I had to get it from the local police station in South Korea.  However, it is not feasible for me to visit Korea just in order to get this document. I’m wondering whether your law firm deals with this type of case. If so, I would like to know the details of the process.

A) Yes, we’ve been dealing with this kind of case quite often.  The Canadian immigration office is requesting a Police Certificate. The official title of this document in Korea is a Korean Criminal Investigation Records Check Reply(범죄수사경력회보서). There are many people wondering how to get this Korean criminal background check and it also seems that there is conflicting information about this.

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