Friday, May 22, 2015

Being An Expat Dad in Korea: Yes - Not a Law Article Today

The following post is not on law, but it is from one of our commercial advisers and it is one of the best articles I have read from the Korea Times for a long long time (hey since I wrote for the Korea Times)

Being an expat dad in Korea is one of the toughest jobs. And parenting is not something that we talk about enough or get the chance to.

We all have had this situation at some point. Sitting on the couch on a Sunday afternoon this warm spring, drinking an ice-cold imported beer you bought at the local mart and your wife blurts out, "see, you need to be more like the dads on television." The thing is, you can never be truly prepared for being a dad, just one day you are in the game.

I never asked my dad how he did it, he just did. Being a dad in Korea is like escaping from a terrorist prison camp: Completely sleep deprived, panicked and living in the hope you stumble across help in the middle of the desert. It is a mixture of emotions.

You are left to wonder whether you will ever see the inside of that bar in Itaewon again to looking online on Gmarket for the best deals on diapers, endless hours negotiating hagwon books and working out round-the-clock study plans for elementary school. In the blink of an eye those freedoms you took for granted disappear.

Dads are not like moms. Expat dads are not surrounded by a library of books and mommy-training manuals. We don't spend months at classes with friends and family. We are that lone wolf, you don't have the family back-up from home.

The closest form of acknowledgement we get as an expat dad is that nod from the other sleep-deprived dad that you may pass on the subway. It is not all doom and gloom. Being an expat dad is like being Willy Wonka in the Chocolate Factory, you get your childhood again, with a bonus. You get away with things that local dads normally would not do.

You get to be a big kid and get away with it. It's the perfect crime. You discover you have someone else who shares your taste in dipping french fries in chocolate shakes. You have someone who shares your love of '80s movies. The greatest day in fatherhood is when your child dresses as a "Star Wars" character and you have your first light-saber duel on your couch.

As a dad, you must also be prepared to memorize the entire musical score of "Frozen" and act out the part of Sven with Academy Award-winning conviction. You have someone who shares your love of fart and poo jokes. As a five-year-old, there is nothing funnier than farts and what shapes we can make in the toilet bowl.

Going through the toy section at Home-Plus becomes fun again and you share the same interest in friends. Her friends, such as Elsa, Poro and Sheriff Woody, will become your friends.

They are on the guest list for any family dinner or the occasional tea party. These are just some of the many perks that take the stress out of living in a foreign country. With Parents' Day coming up, spare a thought for the dads, especially the expat ones.

Tuesday, May 19, 2015

Korean Free Trade Agreements In Effect, Under Negotiation and In Consideration by the Korean Government

Korean Customs Agreement
The Korean Customs Service has an excellent chart noting the Free Trade Agreements concluded, in negotiation and under consideration.  The chart may be found at: Korean Customs: Free Trade Agreement.

Over the next couple of weeks a few articles will be posted on this blog on legal issues regarding FTAs.  Please check back or subscribe to The Korean Law Blog. The articles will be drafted by a Korean customs broker and attorneys that work with the custom broker on issues facing clients in Korea. 
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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.

Tuesday, May 12, 2015

Tobacco Business/Manufacturing Act Upheld by Constitutional Court of Korea

As many of the readers of this blog know, I worked for the Constitutional Court of Korea.  One of the Korean attorneys at our Firm, also, worked for the Court.  No surprise for us in this decision. 

Anti-smoking activists lost a challenge to a law that regulates and allows the manufacture and sale of tobacco in Korea.  The activists intent in the challenge is to completely ban the manufacture and sale of tobacco in Korea. 

On May 11, 2015, The Constitutional Court, in a 7-2 opinion opined that: “It is difficult to tell if a strong correlation between habitual smoking and lung cancer exists.” The Court went on to note that: “Even if a correlation exists, it is not strong enough to force the government to step in to ban tobacco businesses because lung cancer stems from diverse factors.”

The Court, correctly, noted that the government is engaged in many measures to discourage the consumption of tobacco and limit the exposure of non-smokers to smoking.   These measures have been challenged, also, at various courts by smoking advocates. 
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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 profile may be found at: Sean C. Hayes

Monday, May 11, 2015

Fleeing Korea while under Police/Prosecutor Investigation: International Hold in Korea

We have, recently, learned that even if the Korean prosecution/police have not requested that an accused be placed on an international hold, some records of police investigations, indictments and proposed fines and sentences by the prosecution/police are being reported to the Korean Immigration Service. 

An international hold, in Korea, is an official procedure that flags passports and fingerprints and prevents one under this international hold from departing Korea prior to the lifting of the international hold.

Even if you are not under an international hold, Korea Immigration may refuse your departure based on information from data being shared between the Police, Prosecution, National Tax Service and other Korean government agencies.  Please note that the Korea Immigration is a branch of the Ministry of Justice. The Ministry of Justice is in charge of the majority of prosecutions in Korea. 

Thus, in short, someone under investigation in Korea may be stopped at the airport even if not under an official international hold.  

Thus after arrest, fleeing to the airport may not be advisable.  If you are perceived to being fleeing Korea, things may get much worse. 

Other articles on Korean criminal law and criminal attorneys 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.

Friday, May 1, 2015

Korean Journalism and the Comfort Woman Issue by Tom Coyner

One of the reasons why I stick around Asia after so many years is because there are so many things I can discover about what I don’t know. And there matters that I already do know, only to realize that I failed to take them into adequate consideration.

A very prominent case in point has been my rejected column and the invited feedback from KER subscribers. Thanks to everyone, and even to my newspaper editor for rejecting the piece. Why so? Let me try to explain.

First, there is so much misinformation on the military prostitutes or comfort women in the Korean and Vietnamese wars that it makes one’s head spin. The lack of clarity comes down to a couple, easily identifiable factors. Namely, almost everyone publicly involved in these issues have hidden addenda.

Secondly, Korean journalistic standards, including fact checking, are loose, to put it nicely.

Third, while identification of the immediate perpetrators and their victims should be relatively straight forward, it is not. Also, political battles are not being fought about the rapists per se, but the infrastructure – real and imagined – that made wartime rape and worse of women even worse than what it was. And lastly, we have nationalist sentiments being expressed with the maturity of dueling adolescent lovers. There is the obvious discussion as to whether all of this is a comparison of apples to oranges.

As you may recall in the earlier quoted Hankyoreh article written by a NGO head, that I circulated a week back, the report implies that the violence was sporadic and at least some soldiers were punished. Furthermore, a Korean friend with personal ties to the military of the age who served in Vietnam told me that his friends admitted there was a fair amount of rape and murder in the foxholes. But the Korean Vietnam War vets insist there were no ROK-managed or -owned brothels.

Rather, the ROK soldiers used civilian brothels. So one may find it hard to draw an equivalency with what the Koreans say the Japanese did wrong, i.e. running a large network of military brothels/rape centers. Which is not of course to suggest that the Korean side shouldn’t address the apparently widespread issue of rape/murders. (Even my wife heard shocking stories several years ago from returned Korean vets.)

And then there’s the question of the Korean side oversimplifying what the Japanese got up to and obscuring the involvement of Koreans. During WWII, many Koreans were recruited to work in Japan to fill in the manpower gaps created by the Japanese military demands for able-bodied men.

 It is most unlikely that the Japanese themselves did the recruitment and kidnapping of young women for the comfort women. In fact, according to one KER subscriber, there are contemporary Japanese and Korean newspaper reports of Korean human traffickers being arrested in the 1940s.

Also, I heard from another KER subscriber that virtually all the prominent comfort women have changed their stories from "my father sold me/my village head sold me/I was tricked" to "a Japanese soldier kidnapped me." One even gave different testimonies (written and verbal) to the same Congressional hearing!

Finally, there is the problem, noted by a KER subscriber of Korean NGOs, which are arguably more concerned with their own existence than the interests of the elderly women. It is important to remember the South Korean government initially supported the Asian Women’s Fund and then reversed course when the NGOs got upset.

Now, it appears, the NGOs effectively hold everyone hostage. Attempting to draw back and look at the overall scene from 35,000 feet, I recall a very recent conversation with an employee of Edelman Korea.

Edelman is a well regarded global public relations corporation that annually puts out its Trust Barometer for each of its markets. The surveys poll which institutions do a public trust and distrust. Not surprisingly, the South Korean trust rating for government has really plummeted over the past year. At the same time, public trust in information found on the Internet continues to climb. And trust of what’s presented by traditional mass media hovers about the same – at a very, very low rating – as in past years.

I have noted the gullibility of the South Korean public in Internet rumors and blogs since when I came out with my first book on doing business in Korea in 2007. The high competition of the traditional media to get scoops and other stories out into print with little or no fact checking has long been a real problem in South Korea.

So much so, it comes as no wonder why many young Koreans figure their social media and other Internet resources are as accurate as to what is presented by major newspapers and television broadcasters. To put it another way, when all information seems to be less than fully credible and thereby is just one form or another of gossip, then who do you believe? With isolated and yet Internet-connected young South Koreans, they naturally believe more from their cyber peerage made up networks of ‘friends’ than what they may read in the newspaper.

We saw this come into full effect with the so-called Mad Cow Disease demonstrations some years ago – all of which were started by SMS messages sent out by high schools students. Soon after, the demos being hijacked by opponents to the conservative government. We can see similar examples of mass demonstrations in support of the Sewol Ferry victims and the Korean ‘comfort women.’ All of these mass movements are being fueled by emotions as stated in the waved signs, but also reinforced by cynical political forces with agenda having little to do with demonstrated causes per se.

All of which bring me back to my opening of what I have encountered over the past week – lack of clarity, hidden agenda, poor journalism, and blind nationalism. So given where I was going with my originally drafted opinion piece, I must offer my kudos to my editor for not running my essay, regardless what his motivations may have been. And thanks indeed to those KER subscribers who got back to me with their collective wisdom.
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Tom Coyner is a Senior Adviser to IPG.  His Korean Economic Reader can be subscribed to at: www.softlandingkorea.com

Sunday, April 26, 2015

Contracts with Korean Company or Foreign Subsidiary of Company: Enforcement of Foreign Judgments in Korea

A recent amendment of the Korean Civil Procedure Act added Article 217-2.  The Amendment has codified a holding by the Seoul Central District Court and other Korean courts noting, in part, that Korean courts may refuse to "recognize foreign damage awards that clearly exceed amounts considered reasonable in Korea in violation of good morals and the social order of Korea"(99 KaHap 14496, S. Cent. Distr. Court, 10/20/2000).

The Amendment allows courts, in Korea, the power to not recognize a damage award that the court's perceives as "excessive."  This standard-less "standard" leaves much wiggle room for Korean courts.    
A typical situation is a case where an American importer sues a Korean conglomerate in a U.S. court and damages are awarded to the U.S. company.  The American importer, then, attempts to enforce the judgment in Korea. 

There is a simple way to avoid the risk of your judgment not being enforced in Korea.  Don't require yourself to have a need to enforce your judgment in Korea.

Be smart - sign the agreement, not, with a Korean conglomerate's Korean HQ, but with the American subsidiary of the Korean conglomerate if, inter alia, the subsidiary is capitalized and has assets to attach.  Most Korean companies have substantial assets tucked away in Hong Kong, U.S. and European companies.

Please have an attorney with significant experience with enforcing judgments against Korean conglomerates review your agreement.  Signing an agreement with a subsidiary poses, potentially, other risks. 

The reality is, with this amendment and a few noted cases, a foreign judgment may not be fully enforced in Korea.  Thus, put strategy to work for you.  Also, remember it is better, in most cases, to not work and not be paid than to work and not be paid. 
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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.