There was a news report that more than half of the foreign workers in South Korea are not aware of the fact that they can claim for the severance pay. Yes, Korean labor law recognizes severance pay. It is being regulated by the Guarantee of Workers’ Retirement Benefits Act(“GWRBA”). In this article, we will provide you a guide to the general ideas of how severance pay works, who gets it, and how much in Korea.
Tag: Korean Law
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? I just want to know how to divorce when the spouse doesn’t live in Korea.
Spouses Can Live in Different Country to File for Divorce in Korea
In general, the Korean court requires at least one spouse to reside in Korea in order to process the divorce filing. Thus, the fact that one spouse resides in a foreign country doesn’t bar a spouse living in Korea to file for divorce. The issue, however, lies in a procedural matter.
(more…)Is a Private Adoption Legal in South Korea?
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…)
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. 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 a 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 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 the 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 (more…)
[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 (more…)
Classifying a Foreign Incorporated Corporation as a Domestic Corporation for Korean Tax Purposes: “Actual Business Management Place” Rule
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…)
[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 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…)
Is Defaulting Korean Supplier Liable for the Foreign Distributor’s Damages and Loss of Profits Resulting from the Failure of 3rd Party Reseller Deal?
A 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, (more…)
[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 the 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 the Korean Supreme Court recognized and approved the Canadian court’s divorce/asset distribution/child support/alimony order. That order was issued from the Superior Court of Justice in Ontario.
As a matter of law, the Korean court recognizes a foreign ruling pursuant to the rules of foreign judgment recognition: (i) the foreign court has 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 clearly declared that South Korea and Ontario have a mutual guaranty.
What is more important in this ruling is that the Supreme Court recognized the foreign court’s alimony order. Under Korean divorce law, there is no legal concept of alimony in a divorce. Therefore, some may argue that as the alimony is not the legal right established in Korea, recognizing the foreign court’s alimony ruling in Korea would violate the social order of South Korea. But, (more…)
Apple’s Korean Office Paid Compensation to a South Korean User for iPhone Location Tracking – Does This Mean Korean Court Made an End to the Legal Turmoil?
It was reported that last month Apple’s South Korean office paid $945 of compensation to one of South Korean iPhone users for the breaching of privacy by the controversial iPhone user location tracking. Here is the detail from Reuters.
By the way, some news media reported that this was a ruling from a Korean district court. I, as a Korean lawyer, think that statement is half right and half wrong. Basically it is true that the court issued a ruling which ordered the Apple Korea to pay $945 to the user. But this was not a formal trial case, but a Request for a Payment Order case. Payment order is a more convenient & simplified legal procedure for claimant to get a judgment from the court compared to a formal lawsuit. Once a request filed, the Korean court does not question the debtor (in this case, the Apple Korea) and issue a Payment Order within 2 or 4 weeks (in certain courts, within a few days). This payment order, a sort of ruling, asks the opposing party to choose whether to admit the claim as written on the request or to make an objection. If no objection has been raised from the opposing party within 2 weeks, then (more…)