Private Adoption is Legal in South Korea

The answer is yes, private adoption is legal in South Korea.  There are two types of adoption under the Korean legal system.  One is a private adoption and the other one is a foster care/institutional adoption.  Private adoption is an adoption that is initiated by a private placement from the birth parent without the involvement of any adoption agency.    The most important distinction of private adoption is that it is regulated by the Civil Code and it cannot be executed for a child in foster care or an orphanage.  Any child who is in foster care or an orphanage (“Child Under Social Protection”) 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 totally different legal systems, many people often confuse these two.  As a foster care adoption must be taken care of by an adoption agency, non-foster care adoption, i.e. a private adoption, (more…)

When receiving gifts of money or other property, the party 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 a foreign country where the foreign party resides.  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 Korean resident(devisor) should report the transaction in advance to the Bank of Korea.

The nationality of the parties doesn’t matter here. Only the place of residence does matter.  The Korean Tax authority (National Tax Service) has an internal rule to apply to decide who is a resident and who is not.

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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 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, the Korean court has a tendency to limit the wife’s share at a very low level.

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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. (more…)

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 took this case at the appellate court level.  We reviewed 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 the vague concern.  We even found a critical error in the translation of the ODC evaluation report provided by the Korean adoption agency.

We 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 (more…)

Seoul Bar AssociationThe 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 from taking 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 (more…)

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 (more…)

Q) I have a question about whether to renounce inheritance in Korea. 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 the U.S. and they are U.S. citizens. 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. They even said as I am not a Korean citizen, it would be much better renouncing inheritance for the sake of estate distribution. He said he will compensate me for my renounced share. Can you give me any advice?

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Question) I am a US citizen and have been living with my Korean boyfriend for about 3 years in South Korea.  We loved each other and agreed to marry, but we were so busy having 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 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 and/or living together as a husband and a wife is not enough for the establishment of legal marriage.

What Is the Common-Law Marriage in Korea?

If the parties live together without the marriage report and consider themselves each other’s spouse, it is called a common-law marriage or a de facto marriage. The Korean law recognizes the common-law marriage.

When can a common-law marriage be legally established under Korean law?  The court’s recognition of common-law marriage is subject to the finding of both (i) mutual intent to form a marital relationship, and (ii) the existence of substance of marital life.  For this purpose, the court looks into various facts such as the duration of cohabitation, the existence of a marriage ceremony, relationship with other family members, etc.

What Rights Do I Have under Common-Law Marriage in Korea?

Common-law 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 dissolution of the common law marriage relationship, Korean law applies almost identical protection to the parties.

Right of Property Division

First, the Korean law grants the right of property division to each party of the common law marriage.  Each party is entitled to some share of the assets acquired during the relationship according to his or her contribution.  Even if a party who is solely responsible for the relationship breakdown can still claim for the division of the property.

RIght of Consolation Money

Second, a party can seek 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…)

It is first noted that the basic law in Korea regulating labor standards is the Labor Standards Act (“LSA”), ”), which is applicable to the employers with at least 5 employees.  As for the employers with less than 5 employees, only a part of LSA provisions would be applicable.  And, LSA provisions relating to our comments below are not applicable to these employers with less than 5 employees.  The only statutory restriction for a employer with less than 5 employees is the prohibition of dismissal during a particular period of time such as employee’s illness and childbirth.  That said,  please bear in mind that our comments below are only provided for employers and employees at a workplace with at least 5 employees.

Article 23 of LSA requires a “justifiable cause” if and when an employer takes disciplinary actions, including termination of employment, with regard to its employees.  Korean courts have held that a “justifiable cause” refers to such causes as criminal offence, serious illegal acts, and gross negligent acts, etc. which would make maintaining of the relevant employment relationships no longer possible under generally accepted public notions.

Especially, because a termination of employment is the most extreme measure, taking away an employee’s means of making a living, Korean courts are known to be very strict in applying the above-noted criteria, when it determines whether a particular termination is justified.  Thus, (more…)