Corporate Downsizing the Korean Way
Appeared in the Korea Times on May 18, 2007
Lex Pro Bono Column
Dear Professor Sean Hayes, I am working for a company that has notified us that they will layoff around 25 workers. I heard that under the Korean Labor Law an employer cannot dismiss employees without just cause. Is this true and what can I do to protect my job? Worried in Yeouido.
Dear Worried, the Korean Labor Law provides some protection from dismissal by employers, but provides little protection for employees that are dismissed because of serious economic difficulties facing an employer.
Korean Labor Law is codified in the Korean Labor Standards Act (LSA). The LSA is a statute that dictates the working standards for most workplaces. The statute is vague and most of its language has been developed through case law.
Article 30 and 31 of the LSA assist in guaranteeing employment security. The LSA states that an employee under contract cannot be terminated unless ``just cause’’ exists for the termination. Case law has established that just cause includes ``fault directly attributable to the employee’’ and ``urgent managerial necessity.’’
So accordingly, employers that intend to lay off workers must assert that an urgent managerial necessity’’ exists. Urgent managerial necessity includes mergers and acquisitions, business relocations and most serious economic difficulties.
However, the LSA provides some protection even when an urgent managerial necessity exists. LSA 31 (2) states that the employer must ``make every effort’’ to avoid layoffs.
The (Korean) Supreme Court has noted that to make every effort means that an employer may need to offer early retirement packages, reduce working hours, obtain labor concessions, and institute a freeze on hiring before being able to satisfy this requirement.
The LSA also provides that an employer must select those to be laid o ff in a ``reasonable and fair way.’’ For instance, laying off only women or elder employees will immediately raise red flags.
The LSA also requires that after a layoff occurs an employer who wishes to increase the number of workers within two years of the layoff must give ``preferential treatment’’ to former employees.
If you believe that an employer is terminating employees in violation of the LSA an employee may institute either an administrative complaint with the Labor Relations Commission, a criminal complaint with a local prosecutor's office, or a civil complaint with a local court.
You can hire an employment/labor lawyer for this service or if you don't have the means you can, often, manage the matters without the assistance of an attorney.
_____
SeanHayes@ipglegal.com
Friday, May 18, 2007
Saturday, May 5, 2007
Poor Education Leads to Poor Lawyers
Appeared in Korea Times on May 3, 2007
Lex Pro Bono by Sean Hayes
Dear Prof. Hayes: My company and I have run into a few legal difficulties when doing business and residing in Korea. I found that the legal fees are very high and the legal representation was poor. I question the education of many Korean lawyers. How are they educated and what do you need to do to become a lawyer?
Foreign Resident of Seoul.
Dear Foreign Resident: To become an attorney in Korea you need to pass the judicial exam and then attend the Judicial Research and Training Institute (JRTI). At present the system allows only 1,000 students to pass the judicial examination. Facially the cap is to prevent those not qualified from becoming attorneys.
After passing the judicial exam all test passers must attend the JRTI. The institute is a two-year study program run by the Supreme Court. Mainly judges teach classes and the program consists of class work and also hands on training.
Therefore, to become an attorney you need not attend universities. However, most students attend universities and most students study law. But it is considered by many students that the study of law at the university level is not as helpful as studying at a judicial exam test preparation school. Hence, many students don’t study as hard in university as they do for the judicial examination. Some students even choose to forego their study at university, for a number of years, in order to pass the judicial exam.
The system needs revising. The test relies too heavily on test taking skills that have little relationship to legal skills, the universities play little to no role in training students how to become lawyers (problem solvers/critical thinkers), the JRTI puts too much emphasis on teaching the skills to become a judge, while putting little emphasis on general legal skills, and overwhelming professors at universities never practiced law and professor-judges at the JRTI never taught law.
These problems supposedly will be solved by the introduction of the American-style law school system, but we must remember that the value of the American legal education system is in the fact that attorneys graduate with legal skills. The legal skills are developed because of the Socratic Method. Korean professors have no intention to teach in the Socratic Method, therefore, the value of the American system will undoubtedly be lost if a major teaching method change is not first developed.
_____
SeanHayes@ipglegal.com
Lex Pro Bono by Sean Hayes
Dear Prof. Hayes: My company and I have run into a few legal difficulties when doing business and residing in Korea. I found that the legal fees are very high and the legal representation was poor. I question the education of many Korean lawyers. How are they educated and what do you need to do to become a lawyer?
Foreign Resident of Seoul.
Dear Foreign Resident: To become an attorney in Korea you need to pass the judicial exam and then attend the Judicial Research and Training Institute (JRTI). At present the system allows only 1,000 students to pass the judicial examination. Facially the cap is to prevent those not qualified from becoming attorneys.
After passing the judicial exam all test passers must attend the JRTI. The institute is a two-year study program run by the Supreme Court. Mainly judges teach classes and the program consists of class work and also hands on training.
Therefore, to become an attorney you need not attend universities. However, most students attend universities and most students study law. But it is considered by many students that the study of law at the university level is not as helpful as studying at a judicial exam test preparation school. Hence, many students don’t study as hard in university as they do for the judicial examination. Some students even choose to forego their study at university, for a number of years, in order to pass the judicial exam.
The system needs revising. The test relies too heavily on test taking skills that have little relationship to legal skills, the universities play little to no role in training students how to become lawyers (problem solvers/critical thinkers), the JRTI puts too much emphasis on teaching the skills to become a judge, while putting little emphasis on general legal skills, and overwhelming professors at universities never practiced law and professor-judges at the JRTI never taught law.
These problems supposedly will be solved by the introduction of the American-style law school system, but we must remember that the value of the American legal education system is in the fact that attorneys graduate with legal skills. The legal skills are developed because of the Socratic Method. Korean professors have no intention to teach in the Socratic Method, therefore, the value of the American system will undoubtedly be lost if a major teaching method change is not first developed.
_____
SeanHayes@ipglegal.com
Labels:
Korean Legal System
Tuesday, May 1, 2007
Immigrating to the U.S.
Appeared in the Korea Herald
Jan. 31, 2004 Legal Ease Column by Sean Hayes
Dear Sean: I'm an American citizen who married a Korean national three years ago. We intend to move to the U.S. this year. What is the most expedient way to navigate the complicated process? Bewildered in Seoul.
Dear Bewildered: The process to obtain a "green card" (permanent residency) for your spouse seems to be a daunting one, but with a little patience, a lot of time, and the willingness to jump through some often useless hoops you will succeed in your endeavor. Few applicants that are "immediate relatives" of U.S. citizens that properly fill-out all forms, have an adequate source of income, and have not violated and laws or previously been expected of filing false information to the U.S. government are denied the benefit of a green card.
"Immediate relatives" of a U.S. citizen refers to parents, spouses and children (who are unmarried and under 21 years of age) of a U.S. citizen. Immediate relatives of a U.S. citizen can immigrate to the United States without being subject to numerical restrictions, unlike other close family members of U.S. citizens and/or permanent residents. Specifically, they can apply for permanent residency status without a waiting period. Other close family members of U.S. citizens or permanent residents are divided into several groups called "preferences." Each preference is given a numerical quota per year to limit the number of immigrants admitted into the United States. The waiting period for these applicants, depending on the number of applicants from the specific country, are often in excess of a decade. Accordingly, if your spouse is the beneficiary of the green card, no waiting period will be imposed and the only waiting time will be the normal application processing time.
There are two basic scenarios that face most U.S. citizens' spouses when applying for immigration: The first scenario is that the alien spouse is already in the United States in a nonimmigrant status (student/work visa). In this case, the U.S. citizen can file an immigration petition (I-130) along with supporting information and the alien spouse can file an application to adjust status to permanent resident (I-485) at the same time.
The second scenario is that the alien spouse is outside the United States. In this case, the U.S. citizen needs to file an immigration petition (I-130) and Biographic Data Form (G-325A) with the U.S. Embassy and request that the U.S. Citizenship and Immigration Services within the Department of Homeland Security adjudicate the petition. Once the immigration petition is approved, the National Visa Center of the U.S. State Department sends "Packet 3" to the U.S. citizen. Packet 3 requires the beneficiary spouse to obtain a medical exam, a police record certificate, and a copy of the Korean Residence Register along with other information. Additionally, an Affidavit of Support (I-864) needs to be filed proving that the U.S. citizen has adequate means to support the spouse. After the necessary forms are completed, the alien spouse should schedule an interview with the U.S. Embassy. The interviews are generally very brief and the visa is usually issued on the same day as the interview.
The process seems a little daunting, but if you file early and be patient the process can be navigated effectively. For more detailed information see: http://travel.state.gov and http://seoul.usembassy.gov.
_____
SeanHayes@ipglegal.com
Jan. 31, 2004 Legal Ease Column by Sean Hayes
Dear Sean: I'm an American citizen who married a Korean national three years ago. We intend to move to the U.S. this year. What is the most expedient way to navigate the complicated process? Bewildered in Seoul.
Dear Bewildered: The process to obtain a "green card" (permanent residency) for your spouse seems to be a daunting one, but with a little patience, a lot of time, and the willingness to jump through some often useless hoops you will succeed in your endeavor. Few applicants that are "immediate relatives" of U.S. citizens that properly fill-out all forms, have an adequate source of income, and have not violated and laws or previously been expected of filing false information to the U.S. government are denied the benefit of a green card.
"Immediate relatives" of a U.S. citizen refers to parents, spouses and children (who are unmarried and under 21 years of age) of a U.S. citizen. Immediate relatives of a U.S. citizen can immigrate to the United States without being subject to numerical restrictions, unlike other close family members of U.S. citizens and/or permanent residents. Specifically, they can apply for permanent residency status without a waiting period. Other close family members of U.S. citizens or permanent residents are divided into several groups called "preferences." Each preference is given a numerical quota per year to limit the number of immigrants admitted into the United States. The waiting period for these applicants, depending on the number of applicants from the specific country, are often in excess of a decade. Accordingly, if your spouse is the beneficiary of the green card, no waiting period will be imposed and the only waiting time will be the normal application processing time.
There are two basic scenarios that face most U.S. citizens' spouses when applying for immigration: The first scenario is that the alien spouse is already in the United States in a nonimmigrant status (student/work visa). In this case, the U.S. citizen can file an immigration petition (I-130) along with supporting information and the alien spouse can file an application to adjust status to permanent resident (I-485) at the same time.
The second scenario is that the alien spouse is outside the United States. In this case, the U.S. citizen needs to file an immigration petition (I-130) and Biographic Data Form (G-325A) with the U.S. Embassy and request that the U.S. Citizenship and Immigration Services within the Department of Homeland Security adjudicate the petition. Once the immigration petition is approved, the National Visa Center of the U.S. State Department sends "Packet 3" to the U.S. citizen. Packet 3 requires the beneficiary spouse to obtain a medical exam, a police record certificate, and a copy of the Korean Residence Register along with other information. Additionally, an Affidavit of Support (I-864) needs to be filed proving that the U.S. citizen has adequate means to support the spouse. After the necessary forms are completed, the alien spouse should schedule an interview with the U.S. Embassy. The interviews are generally very brief and the visa is usually issued on the same day as the interview.
The process seems a little daunting, but if you file early and be patient the process can be navigated effectively. For more detailed information see: http://travel.state.gov and http://seoul.usembassy.gov.
_____
SeanHayes@ipglegal.com
Labels:
Korean Immigration Law
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