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Prenuptial Agreement under Korean Law

Unlike situations in some states in the U.S., a prenuptial agreement is somewhat in a grey area in Korean legal system.  When the case later goes into a divorce by agreement, the prenup would be fully honored by the court, too.  When the case, however, goes into a judicial divorce or a contested divorce, the Korean court applies more strict standard in honoring the validity and application scope of the prenuptial agreement.

I would not say signing a prenuptial agreement is meaningless.  To the contrary having a prenuptial agreement is better than having no such agreement.  Even in case of a contested divorce, the existence of a prenuptial agreement could work for your advantage when the court decides which property shall be distributed and which property shall be opted out.

If you have any question regarding this article or you are in a similar case/situation , please visit our Legal Consultation center or send your inquiry email by clicking here.  Our Korean qualified lawyer will answer your inquiry.

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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] 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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[Q&A] Leaking Employer’s Confidential Information and Employment Termination : What Is Confidential Information under Korean Law?

“Hello, I am a U.S. citizen working for a Korean listed company.  Recently my company sent me a dismissal notice saying I had breached the employment contract by leaking their confidential information.  Informations at issue are a set of sale/purchase statements of the company.  I downloaded those informations from the company’s server to my personal email account.  But, there has been no warning mark of confidentiality.  My other colleagues have a free access too, and the information sometimes was provided to our suppliers.  Did I really breach the confidentiality of my Korean employer?”  

Leaking employer’s confidential information could result in a termination of the employment contract.  The legal issue, however, still remain whether or not the information can be regarded as a confidential information.

Most employers in Korea have their own rules of employment which state what is a confidential information.  And even an employment contract could list a set of confidential informations which the employee should not disclose to 3rd parties.  But, defining what is a confidential information is a matter of law and, therefore, the Korean court does not always follow the definition which an employer had been set in their internal documents.

The Korean court has well-established precedent that the confidential information should be Continue reading


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Classifying a Foreign Incorporated Corporation as a Domestic Corporation for Korean Tax Purposes: “Actual Business Management Place” Rule

그림 67When a foreign incorporated company does a business in Korea, it is very fundamental to determine whether the company is a domestic or a foreign corporation for Korean tax purposes.  A major difference in tax liability is that, in principle, a foreign corporation is liable for taxes only on the incomes generated in Korea rather than a worldwide income.

In this regard, the Corporate Tax Ac of Korea(“CTA”) defines a “domestic corporation” as a corporation with its headquarter, main office, or actual business management place located in Korea, and a “foreign corporation” as an organization which has its head office or principal place of business in a foreign country.  What makes distinguishing domestic corporation for a foreign corporation under CTA difficult and challenging is the meaning and application of the term of “actual business management place” set forth in CTA.  For example, in a case decided by the Supreme Court of South Korea in 2016, a Singapore incorporated company had challenged the Korean tax authority’s decision that its actual business management place was in Korea.

The Singapore company had a wide variety of international business portfolio and among them was a trading foreign issued corporate bonds including a Korean corporate bond.  The Korean tax authority decided that the company’s actual business management had taken place in Korea after finding the facts that the company had a liaison office in Korea, one of the directors was residing in Korea and financial documents relating to the Korean business was stored and managed in Korea.  And this Continue reading


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[Q&A] Can I Enforce My Washington State Child Support Ruling in Korea?

(Question) I have a question regarding my current situation with my ex husband. He is a Korean national and working there in South Korea.  I lived there until 2014 when I came back to Washington and filed a divorce complaint here. Since then he has refused to speak with me.  This year my US lawyer duly served him with the paper but he just kept ignoring it.  At any rate, I got a divorce decree and child support ruling for my baby this April.  Now I am wondering how I can enforce my US ruling in Korea, knowing that he is living a  luxurious life and feels that he can just ignore his child and the responsibilities that come with it.

(Answer) I have to say there is something unclear in this case.  If the court proceedings in Washington(WA) court have been duly made, i.e. (i) the WA court had proper jurisdiction and (ii) he was duly served, you can apply for its execution in Korea to the Korean court. Otherwise, you may initiate whole process de nuvo in Korea.  The second threshold seems to have been met here. Thus, the real issue here rather be the first one.

Please note that the jurisdiction must be acknowledged in the view of Korean law, not WA law. Thus, even though the WA ruling says the WA court has a proper jurisdiction, the Korean court will 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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