Ask Korea Law

Published by Chung & Partners Since 2008


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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 which 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 the 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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Introduction to the Property Division and Consolation Money Claim under the Korean Divorce Law

When you divorce under Korean law, there are the 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 acquire 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.  Most common ration 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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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


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Choice of Laws Is Critical When It Comes to an International Inheritance

Korean LawyerRecently 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 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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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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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