The Legal Education Committee, a Committee that has been criticized for knowing little about education and even less about legal education has announced its provisional list of "Law Schools."
The 15 schools in Seoul, Gyeonggi and Gangwon:
1. Seoul National
2. Yonsei
3. Korea
4. Sungkyunkwan
5. Hanyang
6. Ewha Womans
7. Chung-Ang
8. Kyunghee
9. Sogang (big surprise)
10. Konkuk
11. Inha
12. Ajou (bigger surprise),
13. Kangwon National
14. Hankuk University of Foreign Studies
15. University of Seoul (surprise)
Regional Universities:
1. Pusan National University
2. Kyungpook National University
3. Dong-a University
4. Yeungnam University
5. Chonnam National University
6. Chonbuk National University
7. Wonkwang University
8. Cheju National University
9. Chungnam National University
10. Chungbuk National University.
January 31, 2008
January 25, 2008
Korea Needs More than 4000 New Lawyers per Year
A Korea Development Institute (KDI) report, published on January 14, 2008, strongly asserts that Korea is in need of at least an additional 4000 new lawywers per year.
The KDI report claims that between 1977 and 2006 lawsuits increased by about 13% to 14% per year, while the increase in the number of lawyers only increased by 8.4%, thus, creating a derth in supply.
The KDI report furthur claims that over the past 30 years lawyer incomes have consistently increased, thus, claiming to have dispeled the myth that the market is saturated.
The KDI proposes increasing the number of graduate law school students to 4000 per year in order to meet demand.
The KDI report claims that between 1977 and 2006 lawsuits increased by about 13% to 14% per year, while the increase in the number of lawyers only increased by 8.4%, thus, creating a derth in supply.
The KDI report furthur claims that over the past 30 years lawyer incomes have consistently increased, thus, claiming to have dispeled the myth that the market is saturated.
The KDI proposes increasing the number of graduate law school students to 4000 per year in order to meet demand.
January 24, 2008
"Fair Use" Korean Copyright law
Appeared in the Korea Times on Jan. 25, 2008
Dear Professor Hayes : I am in the process of completing a book on the modern history of the Republic of Korea. A good deal of my work cites news reports, published journals, and first hand reports mentioned in other books, Web sites and personal blogs. My book chronicles the modern developments from the eyes of foreigners who reside or resided in Korea. My publisher wants to confirm that Korea has a "fair use" doctrine, therefore, allowing me to cite the works of others.
Author in Rhode Island
Dear Author : In general, the copyright holders, in Korea, may solely economically exploit a copyrighted work for the life of the author of the work plus 50 years.
Korean Copyright Law provides that copyright infringers may be held liable in civil court and even punished in criminal court. In recent years, the Korean prosecution has been vigorous in prosecuting copyright infringers and the court system has been more willing to hand out sizeable monetary damages in the civil court and jail sentences for repeat offenders in criminal courts.
However, the Korean Copyright Act provides "fair use" type exceptions. Korea, theoretically, doesn't have a fair use doctrine, but the exceptions enumerated in Section 6 of the Copyright Act under the heading Limitations on Authors' Property Rights acts in a similar manner as the commonly understood notion of "fair use."
For example, Article 25 of the Copyright Act permits making "quotations from a work already made public, if they are within a reasonable limit for news reports, criticism, education and research, etc., and are compatible with fair practice."
However, the user of the work, as stated in Article 34, must clearly indicate the source of the quotations.
Courts have interpreted these clauses to allow even lengthy quotations from copyrighted works if the work manages to expound on the work in a meaningful manner.
Hence, author, if your work is an original work that uses only "quotations" from other works and clearly cites that the quotations are from other works you should not be in jeopardy of violating the rights of the copyright holder.
The Korean Copyright Law may be found at www.ahnse.blogspot.com or for a fee at the Korean Legislative Research Institute Web site at http://elaw.klri.re.kr/indexE.jsp.
American attorney Sean Hayes is a law professor at Kookmin University and researcher for the Constitutional Court. He is pursuing a doctorate in law at Seoul National University. He can be reached at SeanHayes@ahnse.com and www.ahnse.blogspot.com.
Dear Professor Hayes : I am in the process of completing a book on the modern history of the Republic of Korea. A good deal of my work cites news reports, published journals, and first hand reports mentioned in other books, Web sites and personal blogs. My book chronicles the modern developments from the eyes of foreigners who reside or resided in Korea. My publisher wants to confirm that Korea has a "fair use" doctrine, therefore, allowing me to cite the works of others.
Author in Rhode Island
Dear Author : In general, the copyright holders, in Korea, may solely economically exploit a copyrighted work for the life of the author of the work plus 50 years.
Korean Copyright Law provides that copyright infringers may be held liable in civil court and even punished in criminal court. In recent years, the Korean prosecution has been vigorous in prosecuting copyright infringers and the court system has been more willing to hand out sizeable monetary damages in the civil court and jail sentences for repeat offenders in criminal courts.
However, the Korean Copyright Act provides "fair use" type exceptions. Korea, theoretically, doesn't have a fair use doctrine, but the exceptions enumerated in Section 6 of the Copyright Act under the heading Limitations on Authors' Property Rights acts in a similar manner as the commonly understood notion of "fair use."
For example, Article 25 of the Copyright Act permits making "quotations from a work already made public, if they are within a reasonable limit for news reports, criticism, education and research, etc., and are compatible with fair practice."
However, the user of the work, as stated in Article 34, must clearly indicate the source of the quotations.
Courts have interpreted these clauses to allow even lengthy quotations from copyrighted works if the work manages to expound on the work in a meaningful manner.
Hence, author, if your work is an original work that uses only "quotations" from other works and clearly cites that the quotations are from other works you should not be in jeopardy of violating the rights of the copyright holder.
The Korean Copyright Law may be found at www.ahnse.blogspot.com or for a fee at the Korean Legislative Research Institute Web site at http://elaw.klri.re.kr/indexE.jsp.
American attorney Sean Hayes is a law professor at Kookmin University and researcher for the Constitutional Court. He is pursuing a doctorate in law at Seoul National University. He can be reached at SeanHayes@ahnse.com and www.ahnse.blogspot.com.
January 23, 2008
National Human Rights Commission of Korea Independence in Jeopardy
The Presidential Transition Committee has proposed the placing of the National Human Rights Commission of Korea under the control of the executive branch. One of the arguments of the Transition Committee is that the Commission is in violation of the principle of separation of powers.
I will discuss this issue in my weekly column in the Korea Times. The column will appear in the Korea Times on Wednesday of next week.
The press release for the Commission, concerning this issue, appears below.
I will discuss this issue in my weekly column in the Korea Times. The column will appear in the Korea Times on Wednesday of next week.
The press release for the Commission, concerning this issue, appears below.
Result of the Emergency Plenary Committee (January 17, 2008)
The National Human Rights Commission of Korea (hereinafter the NHRCK) expresses serious concerns over the government functions and organization rearrangement plans (made public on January 16th) of the Presidential Transition Committee (hereinafter the Transition Committee) which include the change of the NHRCK’s independent status to the direct control of the Presidential office.
As well known, the NHRCK was established on November 25, 2001 as an independent body from the three powers of the Executive, the Legislative and the Judicial branches according to the National Human Rights Commission Act (hereinafter the Commission Act.) The Commission Act was enacted in compliance with the Principles relating to the Status of National Institutions for the Protection and Promotion of Human Rights (Paris Principles). Upon the enactment of the Commission Act, some government ministries insisted that the proposed human rights institution be placed under the aegis of the Executive. After two years of heated debates, however, the NHRCK began operating as an independent national organization. Article 3 of the Commission Act stipulates that the independence of the NHRCK is the result of the social consensus. This is a core feature of the NHRCK, which serves as an exemplary model that sets global standards for other states preparing for the establishment of their own human rights institutions.
The reasoning behind the transition committee’s plan is that the status of an independent commission might go against the Separation of Powers Principle. However, this explanation is based upon the Transition Committee's misunderstanding of the spirit of the Constitution. The purpose of the Separation of Powers is to protect the rights of all citizens from the state. It was in this spirit that the NHRCK was established as an independent national organization through the legislative procedure of the National Assembly to fulfill the state’s duty to guarantee the human rights of individuals under Article 10 of the Constitution.
The Transition Committee's interpretation that the Constitution is based on the separation of the three powers and that the NHRCK is in contradiction with the separation of powers is short-sighted. As societies develop, a variety of national organizations that cannot be explained by the traditional notion of the Separation of Powers among three branches have emerged. Such organizations make up what is called "Fourth Power" as best described by the independent regulatory commissions of the U.S., special prosecutors and the NHRCK of Korea.
For the past six years, the NHRCK has played a significant role in preventing and rectifying human rights violations by governmental agencies and recommending necessary human rights policies that were not being addressed by the government itself. If the NHRCK was a presidential body, it would have experienced significant limitations when dealing with human rights violations due to the objective stance of government organizations. Moreover, with a mandate other than the one provided by the Commission Act that calls for an independent body, the NHRCK’s recommendation on bills and presentation of opinions to the Constitutional Court and other judicial bodies would not have been nearly as effective or efficient.
Under the Constitution, the international human rights law, and the Commission Act, the duty of guaranteeing human rights should be respected as an important value regardless of transition of the ruling power. If the NHRCK becomes a presidential body, it will not be free from the political impacts that may inevitably invite retrogressions in the rights of individuals. This is exactly why the UN Office of the High Commissioner for Human Rights (OHCHR) and other international human rights agencies place a great emphasis on the independence of national human rights institutions around the world. This is also why the International Coordinating Committee (ICC) evaluates the level of the independence from the human rights institutions of states on a regular basis.
Although the government rearrangement plan of the Transition Committee is still a draft, the NHRCK is deeply concerned by the fact that the incoming administration has even considered changing the status of the NHRCK from independent to the control of the President. The independent status is an inviolable requirement that the NHRCK would never give up in order to operate its mandates granted by the Constitution and the Commission Act successfully.
Against this backdrop, the NHRCK urges the Transition Committee that it considers more seriously the demands of the international community, including the United Nations, on the status and roles of independent human rights institutions. Furthermore, the NHRCK sincerely hopes national human rights do not regress due to the misuse of governmental authority during the incoming administration’s term of office. Last but not least, hopefully, the importance of the NHRCK’s independent status will be recognized once again during the discussion process on changes in the Government Organization Law in the National Assembly.
January 17, 2008
National Human Rights Commission of Korea
The National Human Rights Commission of Korea was established in 2001, offering investigation and remedy services for Korean citizens and foreigners residing in Korea against human rights violations and discrimination. The Commission provides policy recommendations and remedial action against human rights infringements, collaborates with international human rights organizations and implements educational programs to improve the human rights culture.
January 16, 2008
U.S. SOFA Korea not Reciprocal
It has been noted by my friend Brendon over at Korea Law Blog that:
I think Brendon is getting bilateral confused with reciprocal. The U.S. Status of Forces Agreement Korea is an agreement that concerns the status of United States military personnel (and others including dependents) stationed in Korea. It is not a reciprocal agreement. Bilateral means, in general, binding on both sides. It does not mean all clauses are binding on both sides.
The Korea Times reports that in August Korean aircrews and planes will be training at Nellis AFB, Nevada for the first time. As for me, I am halfway hoping that one of the Korean military members gets into a traffic accident, or even flips out and commits some sort of crime. We are talking about servicemembers on temporary duty, so drunk driving seems the best bet.http://www.korealawblog.com/entry/united_states_hands_tied_by_unfair_sofa/
So why am I rooting for some kind of misfortune? It’s not because I dislike Koreans, or any members of the aircrews personally. It’s because some kind of a legal entanglement in the Nevada desert would be a teachable moment for the Korean public about the reciprocal nature of the US-Republic of Korea Status of Forces Agreement, a bilateral treaty the “unfairness” of which is an article of faith among the populace protected by US Forces Korea.
I think Brendon is getting bilateral confused with reciprocal. The U.S. Status of Forces Agreement Korea is an agreement that concerns the status of United States military personnel (and others including dependents) stationed in Korea. It is not a reciprocal agreement. Bilateral means, in general, binding on both sides. It does not mean all clauses are binding on both sides.
Going Green
Going Green
Appeared in the Korea Times on Jan. 16, 2007
By Sean Hayes
My father has gone green. No my father has not been transformed by Al Gore's ``Inconvenient Truth." He has been transformed by market mechanisms that have encouraged him to go green. My father is a conservative conservationist and he doesn't even know it.
Yes, my father, proudly, has purchased the liberal do-gooder mother ship ― the Toyota Prius. No he didn't accept the free Al Gore bumper sticker or the dinner with Jane Fonda.
Last year, in the United States, the Toyota Prius, for the first time, outsold the highest selling sports utility vehicle- the Ford Explorer.
My father and many others purchased this gas-electric hybrid because it gets 22 kilometers per liter, many states don't impose sales tax on the car, a federal tax credit is available, the car has a mid-size car feel, it doesn't cost considerably more than a non-hybrid and the car operates in the same manner as ordinary cars (no extension cords required).
My father, the conservative conservationist, is helping an increasingly ailing environment and he is doing it with a smile on his face. If we left this issue to our Al Gore type environmental scare tactic-liberals we would be in risk of destroying many of our cherished economic and social freedoms.
Thus, Korea must watch the footsteps of my father and thus encourage consumers and manufacturers to go green or radical conservationists may step-in and strip us of freedoms that we hold so dear.
Thus, the real ``inconvenient truth" becomes obvious. We will lose many of our cherished freedoms through increased government intervention in our lives, if we don't do something to lower our dependency on fossil fuels.
So first, on the supply-side, we need cars and other products that are greener. We need, through tax incentives, to encourage manufacturers and retailers to create and market green products.
Second, through the demand side, we need consumers, like my green father, to be encouraged to purchase green products. This can be accomplished through cutting VAT taxes and increasing tax credits.
Thirdly, we must reframe the environmental issue. The liberal scare tactics help only the liberal political cause and does little to nothing in finding a reasonable solution to the problem. We need to refocus our attention to educating the population on the economic necessity of being responsible citizens and stewards.
Fourth, we must consider and promote the economic opportunities available in being greener. Many companies, because of economic realities, have chosen to go green because it helps their bottom line.
For example, Unilever has increased its efforts to recycle its manufacturing waste products, WalMart has begun to lower its energy dependency, and a plethora of companies have been investing heavily in alternative and renewable fuel sources.
Lastly, we must encourage private innovation. We need to create a profit motive for private enterprises and individuals to develop more eco-friendly buildings and products and thus create a more sustainable way of life.
As in the words of the Republican governor of South Carolina: ``If conservatives cannot reframe, reclaim and respond to climate change with our principles intact, government will undoubtedly provide a solution, no matter how taxing it may be."
Hopefully, the next administration will take heed and lead us down the conservative conservationist path.
American attorney Sean Hayes is a law professor at Kookmin University and researcher for the Constitutional Court. He is pursuing a doctorate in law at Seoul National University. He can be reached at SeanHayes@ahnse.com and www.ahnse.blogspot.com.
Appeared in the Korea Times on Jan. 16, 2007
By Sean Hayes
My father has gone green. No my father has not been transformed by Al Gore's ``Inconvenient Truth." He has been transformed by market mechanisms that have encouraged him to go green. My father is a conservative conservationist and he doesn't even know it.
Yes, my father, proudly, has purchased the liberal do-gooder mother ship ― the Toyota Prius. No he didn't accept the free Al Gore bumper sticker or the dinner with Jane Fonda.
Last year, in the United States, the Toyota Prius, for the first time, outsold the highest selling sports utility vehicle- the Ford Explorer.
My father and many others purchased this gas-electric hybrid because it gets 22 kilometers per liter, many states don't impose sales tax on the car, a federal tax credit is available, the car has a mid-size car feel, it doesn't cost considerably more than a non-hybrid and the car operates in the same manner as ordinary cars (no extension cords required).
My father, the conservative conservationist, is helping an increasingly ailing environment and he is doing it with a smile on his face. If we left this issue to our Al Gore type environmental scare tactic-liberals we would be in risk of destroying many of our cherished economic and social freedoms.
Thus, Korea must watch the footsteps of my father and thus encourage consumers and manufacturers to go green or radical conservationists may step-in and strip us of freedoms that we hold so dear.
Thus, the real ``inconvenient truth" becomes obvious. We will lose many of our cherished freedoms through increased government intervention in our lives, if we don't do something to lower our dependency on fossil fuels.
So first, on the supply-side, we need cars and other products that are greener. We need, through tax incentives, to encourage manufacturers and retailers to create and market green products.
Second, through the demand side, we need consumers, like my green father, to be encouraged to purchase green products. This can be accomplished through cutting VAT taxes and increasing tax credits.
Thirdly, we must reframe the environmental issue. The liberal scare tactics help only the liberal political cause and does little to nothing in finding a reasonable solution to the problem. We need to refocus our attention to educating the population on the economic necessity of being responsible citizens and stewards.
Fourth, we must consider and promote the economic opportunities available in being greener. Many companies, because of economic realities, have chosen to go green because it helps their bottom line.
For example, Unilever has increased its efforts to recycle its manufacturing waste products, WalMart has begun to lower its energy dependency, and a plethora of companies have been investing heavily in alternative and renewable fuel sources.
Lastly, we must encourage private innovation. We need to create a profit motive for private enterprises and individuals to develop more eco-friendly buildings and products and thus create a more sustainable way of life.
As in the words of the Republican governor of South Carolina: ``If conservatives cannot reframe, reclaim and respond to climate change with our principles intact, government will undoubtedly provide a solution, no matter how taxing it may be."
Hopefully, the next administration will take heed and lead us down the conservative conservationist path.
American attorney Sean Hayes is a law professor at Kookmin University and researcher for the Constitutional Court. He is pursuing a doctorate in law at Seoul National University. He can be reached at SeanHayes@ahnse.com and www.ahnse.blogspot.com.
January 12, 2008
Exemption From National Health Insurance Plan
Exemption From National Health Insurance Plan
Appeared in the Korea Times on January 10, 2007
Dear Professor Hayes:
I am an American working for a company in Korea. My company and I pay for a private insurance policy, but I also pay for the Korean National Insurance Plan. I found that last month premiums drastically increased and I think it is unfair for me to have to pay for two insurance plans when one of the plans I will never use. Can I and the many other foreign workers in this situation avoid paying for the two insurance plans by canceling the government plan? How can I do this? Paying Twice in Seoul.
Dear Paying Twice:
A revision to the enforcement decree of the National Health Insurance Law came into effect a few months ago. The revision allows for foreigners and Korean nationals that reside abroad to avoid paying into the National Health Insurance Plan if they have alternative insurance coverage.
The insurance premiums, over the last few months, have drastically increased. Employees and employers can feel a not insignificant savings by simply filing a few documents with the National Health Insurance Corporation.
All good law firms in Seoul have notified their clients of this change, since in many cases it can relieve a sizeable burden on companies and employees.
Prior to the amendment many foreigners working for companies in Korea contracted for private insurance plans that covered more than the government insurance plans, thus, many would forgo use of the government insurance plan, but still would be required to pay into the National Health Insurance plan.
To alleviate this burden and also the burden on Korean nationals that reside abroad the revision was made.
To avail of this exemption from payments your employer may simply file with the National Health Insurance Corporation a statement signed by the employee that he or she wishes to withdraw from the health insurance plan and include with the documents information related to your health insurance plan.
For contact information for the local office of the National Health Insurance Corporation please visit: http://www.nhic.or.kr/eng/
American attorney Sean Hayes is a law professor at Kookmin University and researcher for the Constitutional Court. He is pursuing a doctorate in law at Seoul National University. He can be reached at SeanHayes@ahnse.com and www.ahnse.blogspot.com.
Appeared in the Korea Times on January 10, 2007
Dear Professor Hayes:
I am an American working for a company in Korea. My company and I pay for a private insurance policy, but I also pay for the Korean National Insurance Plan. I found that last month premiums drastically increased and I think it is unfair for me to have to pay for two insurance plans when one of the plans I will never use. Can I and the many other foreign workers in this situation avoid paying for the two insurance plans by canceling the government plan? How can I do this? Paying Twice in Seoul.
Dear Paying Twice:
A revision to the enforcement decree of the National Health Insurance Law came into effect a few months ago. The revision allows for foreigners and Korean nationals that reside abroad to avoid paying into the National Health Insurance Plan if they have alternative insurance coverage.
The insurance premiums, over the last few months, have drastically increased. Employees and employers can feel a not insignificant savings by simply filing a few documents with the National Health Insurance Corporation.
All good law firms in Seoul have notified their clients of this change, since in many cases it can relieve a sizeable burden on companies and employees.
Prior to the amendment many foreigners working for companies in Korea contracted for private insurance plans that covered more than the government insurance plans, thus, many would forgo use of the government insurance plan, but still would be required to pay into the National Health Insurance plan.
To alleviate this burden and also the burden on Korean nationals that reside abroad the revision was made.
To avail of this exemption from payments your employer may simply file with the National Health Insurance Corporation a statement signed by the employee that he or she wishes to withdraw from the health insurance plan and include with the documents information related to your health insurance plan.
For contact information for the local office of the National Health Insurance Corporation please visit: http://www.nhic.or.kr/eng/
American attorney Sean Hayes is a law professor at Kookmin University and researcher for the Constitutional Court. He is pursuing a doctorate in law at Seoul National University. He can be reached at SeanHayes@ahnse.com and www.ahnse.blogspot.com.
January 10, 2008
No American Law Firms in Korea
Bloomberg 2006.11.08
Korea poised to admit foreign lawyers with FTA
Lawyers for Los Angeles-based Paul, Hastings, Janofsky & Walker LLP spent so much time in Seoul hotels helping South Korean chipmaker Pixelplus Co. go public in the United States last year, they memorized the room-service menus.
The five Korean-speaking attorneys commuted from Hong Kong for 10 months because South Korea doesn’t allow foreign law firms to open offices.
"It’s like having your office in Los Angeles and all your clients in Chicago," said Kim Jong-han, a U.S.-educated lawyer heading the firm’s Korea group in Hong Kong.
As more foreign investors focus on South Korea, an economy growing at 4.6 percent a year, U.S. and European law firms are eager to hang out their shingles in Seoul and other Korean cities. The path may be cleared soon.
A trade agreement being negotiated with the United States would include initial steps to open South Korea’s legal services market. A bill to implement the change is being reviewed by Korea’s Justice Ministry and might be voted on by the National Assembly in early 2007, the Seoul Bar Association says.
"We want to represent Korea’s leading companies, which are very established global players, and there’s a big advantage to being in Korea where their decision makers are," said Greg Nitzkowski, Paul Hastings’ managing partner in Los Angeles.
Legal services would be among many markets covered by the proposed trade accord, along with textiles, agriculture, pharmaceuticals and automobiles. The next round of talks is scheduled for the week of Dec. 4 in the United States.
The deal may boost trade by $29 billion annually, the U.S. International Trade Commission forecasts.
"Services have become a huge part of what in particular developed countries are exporting," said Steve Norton, spokesman for the Office of the U.S. Trade Representative in Washington. "The U.S. permits foreign-licensed lawyers to work here, and it is reasonable that reciprocal treatment by Korea should be given to U.S. lawyers."
Overseas sales of legal services by U.S. firms total about $5 billion a year, Norton said. The domestic U.S. legal services market is worth about $180 billion annually.
International law firms are following their clients into Asian markets, particularly China and Japan. London-based Clifford Chance, the world’s biggest legal adviser by revenue, said in August it wants to double its number of lawyers in China to 90 by 2010 to advise on corporate takeovers and securities sales.
Several foreign firms, including London-based Linklaters and Chicago-based Baker & McKenzie, have Korean-speaking lawyers in Hong Kong or Tokyo to serve Korean clients.
South Korea, Asia’s third-largest economy, has about 8,000 lawyers serving 48.8 million people — or one lawyer for every 6,100 people, according to Korean Bar Association data. By comparison, the United States has one lawyer for every 268 people, based on data from the American Bar Association website.
Korean lawyers are reluctant to allow foreign law offices because local firms typically are smaller than Western ones, said Ahn Chong-ghee, economic counselor with the Korean Embassy in Washington.
"Our firms are concerned about being overshadowed by foreign competitors," Ahn said. "We know that eventually we will have to open the market, but it will take time."
Seoul-based Kim & Chang is Korea’s largest firm, with about 300 professionals, according to its website. Clifford Chance has 3,300 lawyers. Kim & Chang lawyers declined requests for interviews.
Han Ri-bong, director of international affairs for the Seoul Bar Association, said Korean lawyers don’t object to opening the market as long as it occurs gradually, as in Japan. That nation took about 18 years to fully liberalize its market.
"We don’t expect it will take such a long time in Korea, but we see Japan as a successful model," said Han, a corporate lawyer with Bae, Kim & Lee. "We’re concerned that if there’s an immediate opening it will be disruptive and have a negative effect for Korean lawyers."
Only a handful of Korean firms work with international corporations, creating intense competition for legal services and delaying transactions as potential merger suitors wait in line for advice. It isn’t uncommon for the same firm to represent both buyers and sellers in a transaction, said Paul Rhee, a U.S.-educated lawyer and vice chairman of the European Union Chamber of Commerce’s legal services committee. The chamber is a trade group representing European businesses.
"It’s a race to get to a lawyer in order not to get knocked out of the game," said Sy Kim, an attorney with Sheppard Mullin Richter & Hampton in New York whose clients have included Glovit Inc., a Korean theme-park developer.
Removing restrictions might make South Korea more competitive with China in attracting foreign investment. South Korea received $11.6 billion in direct foreign investment last year, compared with China’s $60.3 billion, according to data from the respective governments.
Pixelplus, which designs semiconductors for cameras in cell phones and personal computers, raised $36 million in its Dec. 20 debut.
"There are so many places where investments get bottlenecked," said James Thoma, a Los Angeles-based lawyer with Greenberg Traurig LLP, whose clients have included Suwon- based Samsung Electronics Co. and U.S. media companies doing business in Korea. "It’s impossible to get the sophisticated legal analysis that investors expect."
South Korea has long had an inward-looking attitude and a distrust of foreign corporations, said William Overhalt, director of the Center for Asia Pacific Policy at Rand Corp., a nonprofit research firm in Santa Monica, California.
"There has been a reaction against foreigners making a lot of money and not paying taxes," Overhalt said.
South Korean prosecutors are investigating Dallas-based Lone Star Funds’ 2003 acquisition of Korea Exchange Bank, the nation’s fifth-largest lender by assets. That investigation has stalled Lone Star’s proposed sale of Korea Exchange to Kookmin Bank, the largest lender.
Lone Star, the biggest foreign investor in South Korea, stands to make a $4 billion profit.
The Korean Supreme Prosecutors Office sought warrants to detain Lone Star cofounder Ellis Short and other current executives to question them about alleged stock manipulation. Those requests were denied by judges on Nov. 3, and prosecutors reapplied hours later. Cofounder John Grayken said last week the probe was driven by an "antiforeign" political climate.
Most of the pressure on the Korean government to open its legal market has come from the United Kingdom because British firms historically have had a bigger presence in Asia, said John Kwon, chairman of the EU chamber’s legal services committee in Korea.
Major U.K. firms such as Clifford Chance and Allen & Overy have had offices in Hong Kong since the 1980s.
The issue of Korean restrictions on legal services came to the fore during the now-stalled Doha round of World Trade Organization talks. The proposed South Korean legislation would apply to all foreign lawyers, not just those from the United States.
Prosecutor Choi Yong-hoon, who oversees the bill’s progress, declined to comment, saying the measure was being reviewed by the Justice Ministry and requires a public hearing. He also declined to comment on when lawmakers might vote.
"A few comments or remarks from me may create a disturbance or a misunderstanding," Choi said. "The matter is closely connected with the current FTA negotiations."
The proposed free trade agreement would be the largest for the United States since the North American Free Trade Agreement of 1994. Trade between South Korea and the United States last year was $71.5 billion.
The fourth round of negotiations, on Jeju Island, South Korea, ended Oct. 27. The talks were marked by scuffles between police and Korean farmers, who oppose opening agricultural markets.
Chief U.S. negotiator Wendy Cutler said during an Oct. 30 conference call that both sides still "have different views" concerning legal services. She wouldn’t elaborate.
The draft bill released in April won’t allow foreign law firms to hire Korean lawyers or set up joint ventures with Korean firms. Yet foreign firms say they will benefit just by being closer to Korean clients.
Linklaters — which advised Lone Star and has 320 lawyers spread across Asia in Hong Kong, Beijing, Shanghai, Tokyo, Singapore and Bangkok — would consider opening an office in Seoul if allowed, said Simon Davies, the managing partner for Asia.
"Given the size of the economy and the size of the deals, it is a very important market," Davies said.
from the Korea Herald
Korea poised to admit foreign lawyers with FTA
Lawyers for Los Angeles-based Paul, Hastings, Janofsky & Walker LLP spent so much time in Seoul hotels helping South Korean chipmaker Pixelplus Co. go public in the United States last year, they memorized the room-service menus.
The five Korean-speaking attorneys commuted from Hong Kong for 10 months because South Korea doesn’t allow foreign law firms to open offices.
"It’s like having your office in Los Angeles and all your clients in Chicago," said Kim Jong-han, a U.S.-educated lawyer heading the firm’s Korea group in Hong Kong.
As more foreign investors focus on South Korea, an economy growing at 4.6 percent a year, U.S. and European law firms are eager to hang out their shingles in Seoul and other Korean cities. The path may be cleared soon.
A trade agreement being negotiated with the United States would include initial steps to open South Korea’s legal services market. A bill to implement the change is being reviewed by Korea’s Justice Ministry and might be voted on by the National Assembly in early 2007, the Seoul Bar Association says.
"We want to represent Korea’s leading companies, which are very established global players, and there’s a big advantage to being in Korea where their decision makers are," said Greg Nitzkowski, Paul Hastings’ managing partner in Los Angeles.
Legal services would be among many markets covered by the proposed trade accord, along with textiles, agriculture, pharmaceuticals and automobiles. The next round of talks is scheduled for the week of Dec. 4 in the United States.
The deal may boost trade by $29 billion annually, the U.S. International Trade Commission forecasts.
"Services have become a huge part of what in particular developed countries are exporting," said Steve Norton, spokesman for the Office of the U.S. Trade Representative in Washington. "The U.S. permits foreign-licensed lawyers to work here, and it is reasonable that reciprocal treatment by Korea should be given to U.S. lawyers."
Overseas sales of legal services by U.S. firms total about $5 billion a year, Norton said. The domestic U.S. legal services market is worth about $180 billion annually.
International law firms are following their clients into Asian markets, particularly China and Japan. London-based Clifford Chance, the world’s biggest legal adviser by revenue, said in August it wants to double its number of lawyers in China to 90 by 2010 to advise on corporate takeovers and securities sales.
Several foreign firms, including London-based Linklaters and Chicago-based Baker & McKenzie, have Korean-speaking lawyers in Hong Kong or Tokyo to serve Korean clients.
South Korea, Asia’s third-largest economy, has about 8,000 lawyers serving 48.8 million people — or one lawyer for every 6,100 people, according to Korean Bar Association data. By comparison, the United States has one lawyer for every 268 people, based on data from the American Bar Association website.
Korean lawyers are reluctant to allow foreign law offices because local firms typically are smaller than Western ones, said Ahn Chong-ghee, economic counselor with the Korean Embassy in Washington.
"Our firms are concerned about being overshadowed by foreign competitors," Ahn said. "We know that eventually we will have to open the market, but it will take time."
Seoul-based Kim & Chang is Korea’s largest firm, with about 300 professionals, according to its website. Clifford Chance has 3,300 lawyers. Kim & Chang lawyers declined requests for interviews.
Han Ri-bong, director of international affairs for the Seoul Bar Association, said Korean lawyers don’t object to opening the market as long as it occurs gradually, as in Japan. That nation took about 18 years to fully liberalize its market.
"We don’t expect it will take such a long time in Korea, but we see Japan as a successful model," said Han, a corporate lawyer with Bae, Kim & Lee. "We’re concerned that if there’s an immediate opening it will be disruptive and have a negative effect for Korean lawyers."
Only a handful of Korean firms work with international corporations, creating intense competition for legal services and delaying transactions as potential merger suitors wait in line for advice. It isn’t uncommon for the same firm to represent both buyers and sellers in a transaction, said Paul Rhee, a U.S.-educated lawyer and vice chairman of the European Union Chamber of Commerce’s legal services committee. The chamber is a trade group representing European businesses.
"It’s a race to get to a lawyer in order not to get knocked out of the game," said Sy Kim, an attorney with Sheppard Mullin Richter & Hampton in New York whose clients have included Glovit Inc., a Korean theme-park developer.
Removing restrictions might make South Korea more competitive with China in attracting foreign investment. South Korea received $11.6 billion in direct foreign investment last year, compared with China’s $60.3 billion, according to data from the respective governments.
Pixelplus, which designs semiconductors for cameras in cell phones and personal computers, raised $36 million in its Dec. 20 debut.
"There are so many places where investments get bottlenecked," said James Thoma, a Los Angeles-based lawyer with Greenberg Traurig LLP, whose clients have included Suwon- based Samsung Electronics Co. and U.S. media companies doing business in Korea. "It’s impossible to get the sophisticated legal analysis that investors expect."
South Korea has long had an inward-looking attitude and a distrust of foreign corporations, said William Overhalt, director of the Center for Asia Pacific Policy at Rand Corp., a nonprofit research firm in Santa Monica, California.
"There has been a reaction against foreigners making a lot of money and not paying taxes," Overhalt said.
South Korean prosecutors are investigating Dallas-based Lone Star Funds’ 2003 acquisition of Korea Exchange Bank, the nation’s fifth-largest lender by assets. That investigation has stalled Lone Star’s proposed sale of Korea Exchange to Kookmin Bank, the largest lender.
Lone Star, the biggest foreign investor in South Korea, stands to make a $4 billion profit.
The Korean Supreme Prosecutors Office sought warrants to detain Lone Star cofounder Ellis Short and other current executives to question them about alleged stock manipulation. Those requests were denied by judges on Nov. 3, and prosecutors reapplied hours later. Cofounder John Grayken said last week the probe was driven by an "antiforeign" political climate.
Most of the pressure on the Korean government to open its legal market has come from the United Kingdom because British firms historically have had a bigger presence in Asia, said John Kwon, chairman of the EU chamber’s legal services committee in Korea.
Major U.K. firms such as Clifford Chance and Allen & Overy have had offices in Hong Kong since the 1980s.
The issue of Korean restrictions on legal services came to the fore during the now-stalled Doha round of World Trade Organization talks. The proposed South Korean legislation would apply to all foreign lawyers, not just those from the United States.
Prosecutor Choi Yong-hoon, who oversees the bill’s progress, declined to comment, saying the measure was being reviewed by the Justice Ministry and requires a public hearing. He also declined to comment on when lawmakers might vote.
"A few comments or remarks from me may create a disturbance or a misunderstanding," Choi said. "The matter is closely connected with the current FTA negotiations."
The proposed free trade agreement would be the largest for the United States since the North American Free Trade Agreement of 1994. Trade between South Korea and the United States last year was $71.5 billion.
The fourth round of negotiations, on Jeju Island, South Korea, ended Oct. 27. The talks were marked by scuffles between police and Korean farmers, who oppose opening agricultural markets.
Chief U.S. negotiator Wendy Cutler said during an Oct. 30 conference call that both sides still "have different views" concerning legal services. She wouldn’t elaborate.
The draft bill released in April won’t allow foreign law firms to hire Korean lawyers or set up joint ventures with Korean firms. Yet foreign firms say they will benefit just by being closer to Korean clients.
Linklaters — which advised Lone Star and has 320 lawyers spread across Asia in Hong Kong, Beijing, Shanghai, Tokyo, Singapore and Bangkok — would consider opening an office in Seoul if allowed, said Simon Davies, the managing partner for Asia.
"Given the size of the economy and the size of the deals, it is a very important market," Davies said.
from the Korea Herald
January 9, 2008
Avoid Moral Hazard
Avoid Moral Hazard
By Sean Hayes
Appeared in the Korea Times on January 8, 2008
President-elect Lee Myung-bak, during the campaign, pledged to create a 7 trillion won fund, managed by a presidential body, to assist in alleviating difficulties being felt by credit delinquents. The fund is equal to 5 percent of the ordinary annual budget of 2007.
It has been estimated, by the Financial Supervisory Commission, that 3 million individuals are in default on loans and an additional 4 million individuals, because of past defaults, are unable to obtain credit.
The fund, in part, will be used to restructure debts and create micro-credit banks. President-elect Lee, according to reports in this and other news sources, may also force companies to delete negative information from credit reports.
We hope President-elect Lee won't fall into this populist trap. He has many bold fiscally sound plans that are needed to lead this country to future economic, social, and political development, however, this bailout plan will create a ``moral hazard" that will be felt for generations to come.
We must take the blame that the moral hazard of easy credit, government encouragement of using credit, and the realization by banks that the government will bail them out has helped to create this present situation and fixing it with a bailout moral hazard is just passing the problem on to future generations.
America is experiencing the same learning pains with its subprime mortgage mess. Regrettably the U.S. situation is being handled in the same populist manner.
A moral hazard occurs when some policy or action assists in altering the behavior of individuals in a counterproductive manner. For example, policies that attempt to mitigate risk create an incentive for individuals and businesses to assume more risk.
A simple example is the case of the savings and loans crisis that hit the U.S. in the 1980s. The prior U.S. deposit insurance and bank-closure policies protected the capital of depositors and other bank creditors from risk in the event of failure of financial institutions.
The policy created an incentive for these institutions to take speculative positions. As we all know, many of these positions failed which led to the collapse of many savings and loans and to the government footing the bill.
The deposit-insurance policy was quickly changed in reaction to the creation of this moral hazard.
The subprime mortgage mess was also created by a moral hazard. Fed Chairman Ben Bernanke and his predecessor Alan Greenspan believe that asset bubbles can't be adequately detected, thus, monetary policy should only focus on alleviating the pain felt when a bubble collapses.
This policy has created a moral hazard in the housing market, since now the Fed is telling us that they will take no action against bubbles, but will relive the pain felt when a bubble bursts.
This faulty logic, which Bernanke realized was faulty during the savings and loans crisis, seems to now be lost under the cloud of Greenspan. Bernanke during the savings and loans crisis stated that: ``When this moral hazard is present, credit flows rapidly into rigidly supplied assets, such as real estate.
Rapid appreciation is the result, until the inevitable albeit belated regulatory crackdown stops the flow of credit and leads to an asset-price crash."
Let us learn from the mess created in the U.S. in the 1980s and today and realize that bailouts can generate moral hazards if they bail individuals or companies out of risk caused by their ill-advised actions.
In order for banks and individuals to learn and not be encouraged to take on ill-advised risk their misdeeds need to be felt and realized.
American attorney Sean Hayes is a law professor at Kookmin University and researcher for the Constitutional Court. He is pursuing a doctorate in law at Seoul National University. He can be reached at SeanHayes@ahnse.com and www.ahnse.blogspot.com.
By Sean Hayes
Appeared in the Korea Times on January 8, 2008
President-elect Lee Myung-bak, during the campaign, pledged to create a 7 trillion won fund, managed by a presidential body, to assist in alleviating difficulties being felt by credit delinquents. The fund is equal to 5 percent of the ordinary annual budget of 2007.
It has been estimated, by the Financial Supervisory Commission, that 3 million individuals are in default on loans and an additional 4 million individuals, because of past defaults, are unable to obtain credit.
The fund, in part, will be used to restructure debts and create micro-credit banks. President-elect Lee, according to reports in this and other news sources, may also force companies to delete negative information from credit reports.
We hope President-elect Lee won't fall into this populist trap. He has many bold fiscally sound plans that are needed to lead this country to future economic, social, and political development, however, this bailout plan will create a ``moral hazard" that will be felt for generations to come.
We must take the blame that the moral hazard of easy credit, government encouragement of using credit, and the realization by banks that the government will bail them out has helped to create this present situation and fixing it with a bailout moral hazard is just passing the problem on to future generations.
America is experiencing the same learning pains with its subprime mortgage mess. Regrettably the U.S. situation is being handled in the same populist manner.
A moral hazard occurs when some policy or action assists in altering the behavior of individuals in a counterproductive manner. For example, policies that attempt to mitigate risk create an incentive for individuals and businesses to assume more risk.
A simple example is the case of the savings and loans crisis that hit the U.S. in the 1980s. The prior U.S. deposit insurance and bank-closure policies protected the capital of depositors and other bank creditors from risk in the event of failure of financial institutions.
The policy created an incentive for these institutions to take speculative positions. As we all know, many of these positions failed which led to the collapse of many savings and loans and to the government footing the bill.
The deposit-insurance policy was quickly changed in reaction to the creation of this moral hazard.
The subprime mortgage mess was also created by a moral hazard. Fed Chairman Ben Bernanke and his predecessor Alan Greenspan believe that asset bubbles can't be adequately detected, thus, monetary policy should only focus on alleviating the pain felt when a bubble collapses.
This policy has created a moral hazard in the housing market, since now the Fed is telling us that they will take no action against bubbles, but will relive the pain felt when a bubble bursts.
This faulty logic, which Bernanke realized was faulty during the savings and loans crisis, seems to now be lost under the cloud of Greenspan. Bernanke during the savings and loans crisis stated that: ``When this moral hazard is present, credit flows rapidly into rigidly supplied assets, such as real estate.
Rapid appreciation is the result, until the inevitable albeit belated regulatory crackdown stops the flow of credit and leads to an asset-price crash."
Let us learn from the mess created in the U.S. in the 1980s and today and realize that bailouts can generate moral hazards if they bail individuals or companies out of risk caused by their ill-advised actions.
In order for banks and individuals to learn and not be encouraged to take on ill-advised risk their misdeeds need to be felt and realized.
American attorney Sean Hayes is a law professor at Kookmin University and researcher for the Constitutional Court. He is pursuing a doctorate in law at Seoul National University. He can be reached at SeanHayes@ahnse.com and www.ahnse.blogspot.com.
January 3, 2008
Immigration Logic
Immigration Logic
Korea Times Jan. 4, 2007
By Sean Hayes
An article entitled ``Misunderstanding of the New E-2 Visa'' appeared in The Korea Times on Dec. 27. An Immigration official, seemingly speaking for the Ministry of Justice, wrote the article.
He said that articles by ``E-2 visa holding English teachers were shocking to my colleagues and myself who work in the Korea Immigration Service, the Ministry of Justice.''
The article notes that Mr. David Louis Quick, and others, made ``incorrect claims'' in articles written and that ``When one makes arguments, it is very easy for people to fall into the trap of emotional feelings and become very illogical, unless he is well trained in logical reasoning.''
The article continues, in this condescending tone, by stating that the author is ``a member of the New York Bar'' and has ``experience working at an American court.'' The New York Court Web site states that the author was sworn to the New York Bar in 2007.
The author has come to a solution that I like to refer to as ``Immigration Logic."
This Immigration Logic leads to a conclusion that the ``New E-2 Visa,'' its not a new visa, doesn't require an FBI criminal record check but teachers ``can use the following options'' ― contact a ``local police station'' or a ``privately-run criminal record check'' service, such as ``www.criminalbackgroundrecords.com.''
If this is true, this regulation is another useless reactionary rule that directly stems from this ``Immigration Logic.''
The first solution to contact the ``local police station'' would still ``tolerate sex offenders in the classroom.'' A local city police station can only provide criminal records for the state where the police station is located.
For example, in my home state of Connecticut, the state police and some local police departments may conduct a record check, but the report will only include information from Connecticut criminal history records.
A smarter than immigration ``pedophile'' can simply request a record check from a town police department in a state where he has no criminal record and would then receive a clean ``no record'' statement.
The second option of obtaining a criminal check from a commercial service contains the same ``Immigration Logic.'' The service, the article mentioned, provides information on only 46 of the 50 states and only contains limited information for many of the 46 states.
For example, for Arkansas the service only provides information for those that are presently serving time, for California it only includes detailed information for certain counties, for Hawaii it only includes records for the past 12 years, for Pennsylvania it only includes information on those that are imprisoned or under Corrections supervision, and for Missouri, where the author went to law school, it only contains records since 1999.
We must realize that Korea is receiving a very bad name because of this ``Immigration Logic.'' A logic that leads to a Q&A message board on Immigration's Web site that has unanswered questions for over 2 years; immigration officers with English ability that is worse than most kindergarten students that many of our E-2 visa holders teach; an immigration office in Seoul that, until recently, was housed in the same building as a parole office; a Web site that has incorrect and incomplete information; holding cells that contributed to the deaths of 11 foreigners in the Yeosu Detention Center; immigration laws that are arbitrarily and inconsistently enforced; immigration officials that treat foreigners in a condescending and sometimes inhuman manner and numerous constitutional and human rights violations that have been perpetrated in the name of this Immigration Logic.
In the words of President-elect Lee ``All sides and corners of this country must now elevate to a more mature level. We must do away with the old, and create the new to step toward the future and the world.''
Hopefully, the reform-minded President-elect Lee, with the assistance of the Human Rights Commission, will force Immigration to mature and finally turn the prodigal son of the Ministry of Justice down the right path.
American attorney Sean Hayes is a law professor at Kookmin University and researcher for the Constitutional Court. He is pursuing a doctorate in law at Seoul National University. He can be reached at SeanHayes@ahnse.com and www.ahnse.blogspot.com.
Korea Times Jan. 4, 2007
By Sean Hayes
An article entitled ``Misunderstanding of the New E-2 Visa'' appeared in The Korea Times on Dec. 27. An Immigration official, seemingly speaking for the Ministry of Justice, wrote the article.
He said that articles by ``E-2 visa holding English teachers were shocking to my colleagues and myself who work in the Korea Immigration Service, the Ministry of Justice.''
The article notes that Mr. David Louis Quick, and others, made ``incorrect claims'' in articles written and that ``When one makes arguments, it is very easy for people to fall into the trap of emotional feelings and become very illogical, unless he is well trained in logical reasoning.''
The article continues, in this condescending tone, by stating that the author is ``a member of the New York Bar'' and has ``experience working at an American court.'' The New York Court Web site states that the author was sworn to the New York Bar in 2007.
The author has come to a solution that I like to refer to as ``Immigration Logic."
This Immigration Logic leads to a conclusion that the ``New E-2 Visa,'' its not a new visa, doesn't require an FBI criminal record check but teachers ``can use the following options'' ― contact a ``local police station'' or a ``privately-run criminal record check'' service, such as ``www.criminalbackgroundrecords.com.''
If this is true, this regulation is another useless reactionary rule that directly stems from this ``Immigration Logic.''
The first solution to contact the ``local police station'' would still ``tolerate sex offenders in the classroom.'' A local city police station can only provide criminal records for the state where the police station is located.
For example, in my home state of Connecticut, the state police and some local police departments may conduct a record check, but the report will only include information from Connecticut criminal history records.
A smarter than immigration ``pedophile'' can simply request a record check from a town police department in a state where he has no criminal record and would then receive a clean ``no record'' statement.
The second option of obtaining a criminal check from a commercial service contains the same ``Immigration Logic.'' The service, the article mentioned, provides information on only 46 of the 50 states and only contains limited information for many of the 46 states.
For example, for Arkansas the service only provides information for those that are presently serving time, for California it only includes detailed information for certain counties, for Hawaii it only includes records for the past 12 years, for Pennsylvania it only includes information on those that are imprisoned or under Corrections supervision, and for Missouri, where the author went to law school, it only contains records since 1999.
We must realize that Korea is receiving a very bad name because of this ``Immigration Logic.'' A logic that leads to a Q&A message board on Immigration's Web site that has unanswered questions for over 2 years; immigration officers with English ability that is worse than most kindergarten students that many of our E-2 visa holders teach; an immigration office in Seoul that, until recently, was housed in the same building as a parole office; a Web site that has incorrect and incomplete information; holding cells that contributed to the deaths of 11 foreigners in the Yeosu Detention Center; immigration laws that are arbitrarily and inconsistently enforced; immigration officials that treat foreigners in a condescending and sometimes inhuman manner and numerous constitutional and human rights violations that have been perpetrated in the name of this Immigration Logic.
In the words of President-elect Lee ``All sides and corners of this country must now elevate to a more mature level. We must do away with the old, and create the new to step toward the future and the world.''
Hopefully, the reform-minded President-elect Lee, with the assistance of the Human Rights Commission, will force Immigration to mature and finally turn the prodigal son of the Ministry of Justice down the right path.
American attorney Sean Hayes is a law professor at Kookmin University and researcher for the Constitutional Court. He is pursuing a doctorate in law at Seoul National University. He can be reached at SeanHayes@ahnse.com and www.ahnse.blogspot.com.
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