It is getting easier for an employer to enforce non-compete restrictive covenants in employment agreements in Korea, because of recent judgments by lower Korean courts noting, among other things, the value of trade secrets in competitive industries in Korea.
|Korean Non-Compete Agreements
Recently, an interesting case, in a Seoul, Korean court, concerning the wedding planning business was handed down by the Seoul Central District Court (2104NA63529). The Court upheld a three-year non-compete clause against an employee but reduced a liquidated damage clause from KRW 1,000,000 per day to KRW 100,000 per day.
The relevant restrictive covenant noted that: “the Employee shall not work at another company in the same field for three years after termination of employment and the Employee shall pay indemnification of KRW 1,000,000 per day if this Agreement is breached by the Employee.” The business of the company was the wedding planning business. The business is very lucrative and very competitive business in Korea. The employee had access to company trade secrets.
The Seoul Central District Court opined that: “if the agreement with the Non-Competition Restrictive Covenant restricts the employee’s freedom of choosing a career and the right to employment, it is relevant to look to Civil Code 103: Contrary to Good Morals and other Social Order. If so, the agreement is invalid. However, the Non-Competition Restrictive Covenant should be considered, comprehensively, including considering if valuable benefits were given, the period of the non-competition restriction, and the type of occupation.”
The Seoul Court opined that because of the nature of the wedding consulting business, the trade secrets of the company are very important. The Court, specifically, noted the client list is a very valuable trade secret that may be infringed upon when working for a competing business.
The Court, however, reduced the liquidated damage amount from KRW 1,000,000 per day to KRW 100,000 per day. The Court noted that the Employee had an inferior bargaining position and considered the amount of liquidated damages too high.
Please obtain an experienced and proactive Korean-based attorney experienced in employment law in Korea to review your employment agreements. The standard agreements we see are less than adequate. If you are challenging a restrictive covenant, in Korea, many of the ubiquitous Korean lawyers are not adequate. This area of law, requires a specialist.
For an article on the specific test employed by Korean courts please see: Korean Restrictive Covenants.
Here are a few other articles on Korean labor & employment law that may be of interest to the reader:
Other articles that may be of interest:
- Korean Rules of Employment Necessary
- Korean Labor Law Check List for Employers in Korea
- Choice of Law Issues in Employment Disputes
- Restrictive Covenants in Korean Employment Agreements
- Employment Background Checks in Korea
- Enforcement of Covenants not to Compete in Korea: Employment Lawyers in Korea
Sean Hayes 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, and IPG Legal is consistently ranked Top Dispute Resolution Law for our litigation services.
If you would like a consultation with an English-speaking lawyer in Korea, please schedule a call at: Schedule a Call with an Attorney.
- Enforcement of Covenants Not to Compete in Employment Agreements in Korea: Restrictive Covenants in Korea
- Non-Compete Clauses in Korean Employment Agreements and Korean Business Sales Agreements
- Restrictive Covenants in Korean Employment Agreements and the Lawyers in Korea that Draft Them
- Non-Compete Clauses in Employment Agreements in Korea
- Non-Compete Restrictive Covenant in Employment Contracts in Korea
- Can you Revise Employment Rules in Korea without the Agreement of Employees?
- Without a Korean Employment Contract, can you bring a Claim against your Korean Employer for Breach of Contract or Labor Law Violations?
- IPG’s Korean Employment & Labour Law Chapter in Global Legal Insights 2018
- Wrongful Termination in South Korea
- Must I grant Male Employees Maternity/Paternity Leave in Korea?: Korean Labor/Employment Law Updates