7/31/2015

Korean Supreme Court Rules Contingency Fees for Criminal Cases Illegal

The Korean Supreme Court has, recently, ruled that an attorney's contingency fees in criminal cases are against public policy, and are, therefore, illegal in Korea.

The Supreme Court of Korea cited two bodies of law to arrive at its decision: Korea's Civil Act and the Korean Attorney-at-Law Act.

Article 103 of Korea's Civil Act (Juristic Acts Contrary to Social Order) states that a "juristic act that is contrary to good morals and social order shall be null and void."

Article 1 of the Attorney-at-Law Act states that the "mission of any attorney-at-law shall be to defend fundamental human rights and realize social justice." Article 2 of the Attorney-at-Law Act states that "each attorney-at-law shall perform his/her duties independently and freely as a legal professional."

The Supreme Court, then, ruled that contingency fees in criminal cases:
  • Harm the public's perception of lawyers - someone whose mission it is to defend fundamental human rights and help realize social justice; 
  • Hamper the mission of an attorney-at-law who shall operate independently as a legal professional;
  • Reduce the trust of ordinary people in Korea's criminal justice system; and,
  • Are against public policy and social order, and are therefore, illegal.
The American Bar Association Model Rules of Professional Conduct Rule 1.5 prohibits contingency fees in criminal cases and some family law cases.  New York County Lawyers' Association Opinion 714 has noted that the rationale behind the blanket prohibition of contingency fees in criminal cases are three fold:
  1. Arrangements based on acquittal create a conflict of interest and may lead to the potential for compromised representation. Defense attorneys, for example, may be tempted not to plea bargain in order to go to trial and obtain the contingent fee.
  2. The prohibition prevents defense attorneys from taking advantage of criminal defendants who may be willing to pay exorbitant and excessive fees.
  3. There is a general ethical proscription against lawyers acquiring a financial interest in the client's cause and against becoming a joint venturer with the client in the case. The professional judgment of a lawyer should be exercised "free from compromising interests and loyalties." 
In Korea, family law and all other types of matters are still able to be handled via contingency fee.

This holding is being criticized by many attorneys in Korea, since the system is prevalent and a adequate replacement may not be readily available to many attorneys.  The Korean Bar Association is taking the case to the Constitutional Court of Korea.

Many, additionally, contend that the lack of a contingency fee may lead to less aggressive representation by attorneys and a need to move to hourly billing.  Few Korean attorneys bill by the hour and, thus, do not have experience or adequate internal systems to, quickly, move to an hourly billing arrangement.

Often, judges in Korea are criticized for not knowing realities within the legal profession, since most judges in Korea have never engaged in the practice of law outside of their duties as a judge.  The present holding is, possibly, a reaction to an "unreasonable" fee in the particular case, but many question whether the solution of a blanket prohibition is the appropriate remedy for a seemingly isolated situation.

You can read Opinion 714 of the New York County Lawyers' Association here:
New York County Lawyers' Association Committee on Professional Ethics Opinion 714
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info@ipglegal.com

7/25/2015

South Korea moves to Remove Statute of Limitation on Murder

In South Korea, murder has a 25-year statute of limitations. This means that someone cannot be prosecuted for committing murder 25 years after the murder was committed.

A review committee of the National Assembly's Legislation and Judiciary Committee on Wednesday has just pushed through a bill that would remove the statutory 25-year statute of limitations on murder. The bill now awaits approval at the Assembly's plenary session on July 24, 2015.

The revision would not apply to manslaughter (a lesser form of homicide lacking adequate "malice" to qualify as a murder) or parricide (the killing of one's parents).

The move to remove South Korea's statute of limitations on murder has been an ongoing one. In 1999, a 6 year old boy was murdered by an unknown attacker who doused him with sulfuric acid. At that time, the statute of limitations on murder was just 15 years. Korea's Supreme Court last year dismissed his family's request to keep his case open, meaning that his murderer, if he's ever found, would now be immune from prosecution.
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Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty.

Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw. Sean's profile may be found at: Sean C. Hayes

7/24/2015

Famed South Korean Golfer Ordered to Complete Military Service

Bae Sangmoon, 29-year old two-time PGA Tour winner, has been ordered to serve in the South Korean military under Korea's military conscription laws.

Bae was, recently, granted American residency, however, a court in the South Korean city of Daegu has just determined that he had not stayed overseas a long enough period of time to qualify as an overseas resident, and is, thus, required by South Korean law to serve in the military.

South Korea has universal conscription for men, and many South Koreans resent the fact that wealthy, high-profile, and politically-connected young men are granted exemptions from serving in the military seemingly because of these connections.

While Bae would have been conscripted into the military had he not been a famous golfer, his status as one of South Korea's "well-off" citizens likely, also, made him a target by the Military Manpower Administration (MMA). His fame, and the high-profile nature of his legal battle, sealed his fate. In Asia, the squeaky wheel, usually, gets the grease.

Immigration issues like these can quickly become complicated. We recall an instance where a Korean American, who had spent his entire life in the United States, registered himself in the family register. While he wasn't called immediately to serve in the South Korean military, that possibility remained.  The choice registering made the individual to be deemed as a Korean national eligible for conscription.  The individual flagged himself and put himself in a situation whereby the South Korean government, including the MMA, suddenly became aware of his existence. This is, obviously, not a position you want to find yourself in if you don't want to serve in the Korean military.

Check out more of our posts outlining the hassles of dealing with South Korean immigration issues:
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Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty.

Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw. Sean's profile may be found at: Sean C. Hayes

7/23/2015

Enforceability of Korean Executed Holographic/Handwritten Wills in Korea

Holographic wills are enforceable in Korea under Article 1066 of the Civil Act of Korea.  Our law firm is, presently, handling a matter concerning the estate of a decadent where the decadent executed a handwritten will and the inheritors are Korean and foreign nationals.

This is a common issue for lawyers at our firm to handle with the exception of the handwritten will issue.  We, rarely, see cases, these days, of a testator that has executed a handwritten will.  This, however, was not so rare in the not so distant past.

We, highly, recommend not utilizing a handwritten will and having a will formally drafted and executed.  However, in some cases where a testator is near death it may be advisable to execute a handwritten will quickly and, also, quickly, contact an attorney to get a formal will drafted and executed.

Article 1066 of the Civil Act of Korea details the main requirements for enforcement of a holographic will:
"(1) In order to make a will by holograph, the testator must write the whole text of the will with his/her own handwriting, the date, the domicile and his/her full name and must affix her/her seal thereto.
(2) In order to make any insertion, deletion or other alteration of letters in the holograph mentioned in paragragh (1), such alteration must be made in the testator's own handwriting and must affix her/her seal thereto."
Thus, for a holographic will to be valid, in Korea:

  1. The holographic will must be completely in the handwriting of the testator;
  2. The holographic will must contain the date of signing of the will by the testator;
  3. The holographic will must contain the domicile of testator at the time of signing of the will;
  4. The holographic will must contain the full name of the testator; and
  5. The holographic will must contain the testators seal.  
For an amendment to the will, the testator must use his or her own handwriting and must, also, affix his or her seal to the alteration. 

Additionally, the will should, contain specifics with regard to the wishes of the testator that allows a court to fully understand the intent of the testator.  

We, strongly, advise against a holographic will.  The safest manner to insure that your wishes are met is to execute a formal will.  We advise the use of an attorney in Korea that understands, not only the Korean Civil Act of Korea, but Korea's and foreign conflict of law principles if a testator or beneficiary of a will is a foreign national.

Other articles that may be of interest:

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Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw.

Sean's profile may be found at: Sean C. Hayes

7/22/2015

Korean Court Upholds Expulsion of Law Student at Judicial Research & Training Institute for Adultery

A male law student, expelled from the Judicial Research and Training Institute for having an affair with another law student, has just had his appeal to be reinstated denied. The male student's mother-in-law made the situation public after her daughter committed suicide after finding out about the affair.

The male law student was charged with adultery and expelled from the JRTI.  Although he was found guilty in a lower court of adultery, during the course of his appeal, the Constitutional Court ruled South Korea's adultery law unconstitutional, thus acquitting him of criminal wrongdoing.

Although the law student's criminal appeal was successful, the Court on Tuesday cited the seriousness of the case and denied his reinstatement to the JRTI. The female law student, with whom the male law student had an affair, was suspended from the JRTI for three months.

Before a South Korea's law school system changed in 2007, students who passed the bar exam in South Korea still had to undergo two years of additional legal training at the Judicial Research and Training Institute before being able to be qualified as an attorney.  An alternative path, now, exists that resembles the system in most States in the U.S.
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Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty.

Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw. Sean's profile may be found at: Sean C. Hayes

7/21/2015

Samsung's Win Against Elliott is Korea's Loss According to Bloomberg

Mr. William Pesek, a columnist for Bloomberg, wrote an interesting article on the battle between Samsung and Elliott.  With a majority of the local Korean vernacular running stories how the  Samsung merger will increase investments (Samsung Merger to Driver Growth in Pharmaceutical Business), Bloomberg is questioning if this will be the final straw for an increasingly perceived anti-foreign capital destination.

The article is a worth a read.  

The articles notes, in part, that:
"Now that it's likely to go through, the deal will embolden Korea's other family conglomerates -- known as chaebol -- to act even more selfishly than they do already. It's also sure to perpetuate the so-called "Korea discount," which depresses stock valuations relative to developed-market peers. That's the price for the sort of dodgy corporate governance regularly displayed by Samsung, Hyundai and other Korean companies.

Corporate Korea needs to understand shareholder skepticism is a normal part of business, not an existential threat. Unfortunately, Korean companies are often abetted by a national media quick to indulge in xenophobia. Last year, Hyundai Motor Chairman Chung Mong Koo spent $10 billion, three times the assessed value, on land for a new corporate headquarters. When shareholders cried foul -- including Norway's Skagen Funds, the biggest holder of Hyundai preferred stock -- they were castigated by the media as meddling foreigners.

These issues contribute to Korea's other economic problems, including its inability to innovate. In recent months, much has been written, including in the New York Times , about Korea's latest startup boom centered around Seoul's Gangnam district. It's not all hype; venture capitalists from Silicon Valley are indeed eyeing the country's new mobile and Internet businesses. But they will all almost certainly hit Korea's chaebol ceiling. With deep pockets and even deeper political connections, the country's dynastic companies can easily scoop up any potential disruptor that enters the playing field.
Game-changing ideas regularly die inside the rigid, top-down, risk-averse institutions that dominate Korea's economy. So does any sense of corporate self-awareness. The Lees are pulling off this merger because it benefits the family, not Samsung's shareholders or the group's some 500,000 employees. South Korea's problem isn't foreigners or Jews. It's an economic system that insults its people's intelligence."
I suggest a read of the entire article at: Samsung's Win is South Korea's Loss
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Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw. Sean's profile may be found at: Sean C. Hayes