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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(Q&A) Can I Divorce Through the Korean Court While My Wife Lives in Korea and Me in the U.S?

Q) I’m an American and my wife is Korean. She is living in Korea and I have returned to the USA. We have agreed to divorce. However, I can’t go back to Korea just to sign the papers. Is it possible to have her do it? Or have her email me the divorce agreement for me to sign and return to her?

A) There are two types of divorce in Korea.  One is a divorce by agreement and the other one is a divorce by judgment.  When people agree to divorce, there is no need to file for a divorce by judgment.  A divorce judgment is a judicial judgment that basically requires a court hearing, review and judgment.

There is one particular situation, however, when a divorce by judgment is required even when the divorce is uncontested.  That is when one spouse doesn’t reside in Korea.

The divorce by agreement in Korea requires both parties to reside within Korea.  The judge needs to confirm the genuine intent of divorce by meeting up with the couple at the courthouse.  Thus, when one spouse lives abroad like you, the court cannot process the application for divorce.

You might wonder if 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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Introduction to the Property Division and Consolation Money Claim under the Korean Divorce Law

When you divorce under Korean law, there are subsequent legal matters of property division and consolation money.

A property division is a legal right of any spouse who is divorced under the Korean law.  Some people think a spouse at fault is not awarded this right, but that is not true.  There was a court case where even a spouse who cheated on the wife can claim for property division.

The subject of division is any and every marital asset acquired and/or maintained during the marriage.  The debts are also divided.

When dividing the marital asset, the Korean court will decide and apply the contributor share of each party in the course of acquiring and maintaining the marital assets regardless of whose name is on it.  The most common ratio is 50:50.  But when the time of marriage is very short and the value of the assets is high, Continue reading


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Chung & Partners Successfully Convinced Appellate Court to Reverse Lower Court’s Denial of U.S. Parents Adoption Petition

1Recently our office represented U.S. parents whose adoption application had been denied by the Korean court.  The adoption was processed as an institutional adoption which is regulated by the Act on Special Cases Concerning the Promotion and Procedure of Adoption.  Institutional adoption, often called an orphanage adoption, is under more strict regulation and qualifications than a private adoption.  In this case, the 1st instance court of Seoul Family Court denied the U.S. parents adoption petition due to the concern caused by the adoptive parent’s past medical history of Obsessive-Compulsive Disorder (OCD).

Our office, leaded by lawyer Mr. Wonil Chung, took this case at the appellate court level.  We reviewed the the entire record and documents from the beginning and found that the lower court’s finding and the conclusion were not based on the true facts, but on vague concern.  We even found a critical error in the translation of ODC evaluation report provided by the Korean adoption agency.

Mr. Chung argued in front of the appellate judges that U.S. medical professionals had stated that the petitioner’s OCD did not harm his suitability as an adoptive parent.   He also pointed out that the U.S. government had Continue reading


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How to Cope with the Korean Police’s Summon for Criminal Investigation

Can Korean Police Issue a Summon Even When the Suspect Resides Abroad?

For a starter, there may be a question about whether the Korean police can summon a foreigner who resides abroad.  The answer is yes. The Korean criminal law applies to those who have committed crimes within Korea and then gone abroad, as well as those who have committed crimes against Koreans while staying outside of Korea.  Thus, a foreign resident could be sued and accused by the Korean police, and in such case, the Korean police moves to demand the foreign suspect to attend the investigation in Korea.  Recently, our office sees many cases where a foreign resident employee of a foreign company is called in by the Korean police in relation with its Korean subsidiary’s business.

Do I have to comply with the summon?

Since a foreign country is not within the domain of Korea’s criminal jurisdiction, it is not mandatory for the foreign resident suspect to comply with the summon.  However, if the foreign resident suspect refuses to comply with, the Korean law enforcement authority can get an arrest warranty, which could put the suspect at risk of being arrested upon entering Korea. Continue reading


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How Fast Can a Divorce Be Finalized in Korea?

Divorce could be one of the hardest decisions that people make during their entire life.  If people decide to divorce, one question they might ask their Korean divorce lawyer is how long it will take to get the divorce decree from the Korean Family Court.  The short answer to this question is that it depends, the magic phrase that the lawyers would love to use in almost every dialogue.  The thing is, however, that it really depends on various factors, especially what types of divorce they are going through.  It could be a contested divorce or an uncontested divorce, which requires totally different approach and care.

If it is an uncontested divorce which means the parties have been able to agree about all the issues involved in a divorce such as custody, child support, visitation, property division and consolation money, the divorce decree can be obtained within 1 to 2 months.  That is pretty fast compared to other countries.  The parties don’t need to appear at the court so long as a Korean divorce attorney takes care of the case.  That is how our office in Seoul has been handling the uncontested divorce cases.

If the divorce is contested, it requires more time for the Korean Family Court to render a divorce decree.  It should go through several hearings and extensive arguments between the parties. Continue reading