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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Is a Private Adoption Legal in South Korea?

Private Adoption is Legal in South Korea

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


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Specific Grounds for Disciplinary Action or Termination under Korean Labor Law – Employer’s Standpoint

When you hire an employee in South Korea, you cannot freely fire the employee.  The Article 23 of Labor Standard Act(“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 offense, 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, unless an employee’s specific conduct is something that makes current employer-employee relationship no longer possible to continue, it would be advisable for an employer to take less severe disciplinary actions such as suspension of employment, reduction of salary, or reprimand.

Further, as regards the employment termination, under LSA, an employer may also terminate employees where the employer can establish Continue reading


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An Overview of Paternity, Child Custody, Visitation and Child Support under Korean Law

We have received many inquires regarding the child support obligation and custody/visitation rights under the Korean law.  Some cases are related to the divorcing parties and some to the unmarried couples who had babies during the relationship.

In case of unmarried couples, the birth father has no parental rights and obligations until his paternity is established in Korea.  That can be done in 2 ways.  One is to report himself as the father with the Korean local government and the other one is a filing a paternity suit.

When the parental relationship is established by either way, the parties need to agree on the matters of child custody, visitation and child support.  The same goes for the divorcing couple.  When it is hard to reach an agreement, 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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[Q&A: Immigration Law] Can I Appeal the Deportation Order Issued by the Korean Immigration Office?

Q) My friend was convicted of a crime and sentenced to 1-year probation.  It was an accident which happened while he was drunken.  After then, the immigration officer ordered him to leave South Korea within a month on the ground of the conviction.  He is having an E-2 visa and was married to a Korean national.  He has a very good reputation around him and planned to live in Korea permanently.  I think it is too harsh for him to leave Korea.  Does he have any chance to appeal?

A) At the outset, the deportation order or an exit order from the immigration office is subject to the review of the court.  It can be overturned by the court based on the theory of misuse of discretionary power.  The court has ruled that the decision of the immigration office to deport a foreigner should not only meet the requirements provided by the relevant statute, but also it should not do more harm to the foreigner’s individual life than benefits to the public, otherwise it constitutes an abuse of discretion and therefore shall be revoked by the court’s order.

For example, the court has ruled that the deportation order against a HIV positive personnel is an abuse of discretionary power considering  the person’s long-time living base established in Korea.  Also a deportation order against the person with one and half year jail time sentence with 3 year suspension for the violation of (then-existing) Anticommunist Act was struck down, as the court found it an abuse of discretionary power after finding his solid living base in Korea supported by other character evidences is a legitimate interest which should be preserved by allowing his legal residency in Korea.  Also there have been many successful appeal cases Continue reading


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Is Defaulting Korean Supplier Liable for the Foreign Distributor’s Damages and Loss of Profits Resulting from the Failure of 3rd Party Reseller Deal?

그림 2A distributor from the U.S. entered into a distributorship contract with Korean supplier (exporter) for certain goods.  Of course, the U.S. distributor was thinking to resell the goods in U.S. market for a markup. But the problem broke up after the contract was duly singed and executed.  With no reason, Korean supplier suddenly refused to sell the goods and rescinded the contract.  Due to this unexpected turmoil by the foreign supplier, the U.S. distributor could not properly perform the reselling deals with the local warehouse stores, which the distributor had thought very lucrative. There would be no doubt that the act of Korean distributor constitutes a breach of distributorship agreement. But, the U.S. distributor did not pay anything, yet.  The only loss they encountered was they lost a good deal with 3rd party by reason of the Korean supplier’s breach of contract.  Now, the U.S. distributor tries to recover damages and loss of profits from the supplier in Korea which they suffered from the failure of the reselling deal with the local warehouse stores.  In this case, can the U.S. distributor prevail in Korean court and under Korean law?

The key legal issue would be whether the Korean supplier knew of the fact that the distributor had completed their negotiation with 3rd party for the resale agreement.  According to the ruling from the Supreme Court of South Korea, if the supplier knew of the fact, the supplier is liable for the distributor’s loss relating to failure or non-performance of the resale agreement with 3rd party.  By contrast, Continue reading


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[Q&A: Family Law] Is Canadian or U.S. Divorce Decree Including Alimony and Child Support Order Enforceable in Korea?

Q) I filed for divorce in Ontario, Canada.  My husband lived in Canada and he was duly served with the court’s documents.  I will have a final divorce ruling from Canadian court including child support and alimony order soon.  But the issue is he will probably leave Canada and head to South Korea after the ruling is issued.  Will the Korean Courts recognize the Canadian court order in order to enforce his performance of child support and alimony payment?

A) There is a case where Korean Supreme Court recognized and approved the Canadian court’s divorce/asset distribution/child support/alimony order.  That order was issued from Superior Court of Justice in Ontario.

As a matter of law, Korean court recognizes foreign court’s divorce ruling so far as (i) the foreign court has a jurisdiction over the case in perspective of Korean law, (ii) the defendant was duly served, (iii) the ruling of the foreign court does not violate the social order of South Korea and (iv) there exists a mutual guaranty for recognition of rulings between the two jurisdictions.  For the last element, the Korean Supreme Court held that South Korea and Ontario have a mutual guaranty.  What is more important here is that the Supreme Court recognized foreign court’s alimony order.  Under Korean law, there is no legal concept of alimony in divorce.  Therefore, some may argue that as the alimony is not the legal right established in Korea, recognizing foreign court’s alimony ruling in Korea would violate the social order of  South Korea.  But, Continue reading