Ask Korea Law

Published by Chung & Partners since 2008


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Rights of a Criminal Suspect during the Korean Investigation Procedures – Self-Advocacy Note Presented by the Seoul Bar Association

The Seoul Bar Association has recently issued a Self-Advocacy Note for the use of any criminal suspect under the Korean investigative procedures.  Before this being issued, the National Human Rights Commissions had recommended the police and the prosecutors to guarantee the criminal suspects’ right to take notes.  Although this may sound weird to some from other countries, the Korean police and prosecutors have been prohibiting the suspects to take their own notes during the interrogation.

This Self-Advocy note is prepared in order to help any suspect inducing a foreign suspect to fully understand and examine his/her statutory rights to self-advocacy before and during the investigative procedures. You can download it at the homepage of the Seoul Bar association or by clicking here.

This also contains a good explanation of the overall investigative procedures under Korean law.  Below is quoted from the English version of Self-Advocacy Note which explains about the Criminal Investigative Procedures in Korea.  It should be greatly appreciated that Continue reading


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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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[Q&A] Do I Really Have to Give up My Inheritance Share as Other Korean Heirs Claim?

Q) My mother passed away a few months ago. There was no will. She was a Korean citizen and her husband too. All two children live in US. As we understand I have inherited a 2/7 share of my mother’s condominium and some cash in Korea. My stepfather and his Korean lawyer seem to up to no good. They both have sent conflicting and in my opinion false information to me. Especially his lawyer is threatening me that I would not able to sell my share so I had no choice but to give up or transfer my share. The stepfather asked me to sign POA and a Renunciation of Inheritance but I refused. Can you give any advice?

A) As your deceased mother was a Korean, the Korean inheritance law shall be the governing law in Korea(Please click here for general overview of the Korean inheritance law).  Under Korean inheritance law, you and other heirs had already become the co-owners of the condominium and the bank assets of the deceased.  You have no reason to give up your share nor transfer the share to the stepfather as he advised.  The stepfather’s lawyer alleged that Continue reading


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Introduction to the Korean Inheritance Law

When a person is deceased in Korea, the inheritance comes to fruition immediately.  The Korean inheritance law provides who shall become the inheritor and beneficiary of the property of a deceased person, i.e. estate.  This, however, does not always mean the inheritor shall be given all the property of the decedent.  There are separate rules and restrictions of the distribution of the estate in Korea.

The basic rule of the Korean inheritance law is that the property of a deceased person is distributed according to his or her will.  So, a person who is not categorised as a person who can be an inheritor by law can be a beneficiary of the property by the decedent’s will.  What if there is no valid will?  The Korean inheritance law sets forth the rule of intestate succession.  This rule of intestate succession names the beneficiary and the shares of each beneficiary for a distribution.  The intestate succession rule provides that persons become beneficiaries in the following order:

  1. Direct descendants (children or grandchildren)
  2. Direct ascendants (parents or grandparents)
  3. Siblings
  4. Relative within the 4th degree of collateral consanguinity

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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