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…)
Recently our office has represented US clients whose German father had passed away in South Korea without any will. At the time of passing, the deceased was domiciled in Korea and remarried to a Korean wife. The Korean wife contacted the US family out of blue to discuss how to distribute the estate in Korea. The US clients were the children from the deceased’s previous marriage in the US. They contacted our office for the legal advice and representation.
One of the issues was which country’s inheritance law shall be applicable, i.e. the Korean inheritance law or the German inheritance law. This was because the deceased had a foreign nationality, while his estate and residence at the time of passing were all in Korea. Practically, when the Korean law is applied, the US children shall be entitled to the larger shares than those granted under the German law.
In Korea, Article 49 of the Korean Act on Private International Law(“APIL”) is the starting point to determine which country’s law shall be the governing law in case of an international inheritance case. It provides that (more…)
Unlike situations in some states in the U.S., a prenuptial agreement is somewhat in a grey area in the Korean legal system.
When the case later goes into a divorce by agreement, the prenup will be fully honored by the court. It is legal and enforceable in Korea.
When the case, however, goes to a judicial divorce or a contested divorce, the Korean court applies a more strict standard in honoring the validity and application scope of the prenuptial agreement, which in many cases results in nullifying the prenuptial agreement.
We would not say having a prenuptial agreement is meaningless. On the contrary, having a prenuptial agreement is better than having no such agreement. Even in case of a judicial divorce or a contested divorce, the existence of a prenuptial agreement could work for your advantage. Although the court is not bound by the prenuptial agreement, it takes account of the prenuptial agreement when deciding which property is included in the subject of property division, i.e. marital assets.
If you have any questions 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.
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?
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…)
“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 (more…)
When 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 (more…)
(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 that 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. Otherwise, you may initiate the whole process de nuvo in Korea. The second threshold seems to have been met here. Thus, the real issue here rather is the first one.
Please note that the jurisdiction must be acknowledged in the view of Korean law, not the WA law. Thus, even though the WA ruling says the WA court has proper jurisdiction, the Korean court will (more…)
Under the Korean inheritance law, the inheritance comes to fruition immediately when a person is deceased. The Korean inheritance law, the part V of Civil Act, provides who shall become the inheritor and beneficiary of the property of a deceased person, i.e. estate.
The inheritor and beneficiary, however, shall not always take everything from the estate. There are separate rules and restrictions on the distribution of the estate in South Korea.
In this article, we will explain to you the basic rules and practices of inheritance in Korea.
Who Shall Become the Heirs and How to Distribute the Estate under the Korean Inheritance Law
The basic rule of the Korean inheritance law is that the property of the deceased is distributed according to his or her will. So, a person who is not categorized as an inheritor by law can become a beneficiary of the estate 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 purpose.
According to the intestate succession rule, persons become beneficiaries in the following order.