Over the next couple of months, lawyers here at IPG Legal shall provide detailed insight and analysis of the Patent Laws of Korea. The following post details the basics of filing for a patent in South Korea. Individuals or companies can register for patents through the Korean Intellectual Property Office (KIPO). The application and registration of patents is governed by the Korean Patent Act (“the Act”). In most cases, patents may be filed in English, but extra specific measures should be taken prior to, simply, filing a patent in the English language. This article, in short, shall detail the measures as well as other important tips for those thinking of filing a patent in Korea. Who Can File a Patent in Korea? Both the creator of a particular invention or their assigned representative may file for a patent in Korea. Applicants can either be individuals themselves or “juristic persons” which
Continue readingAuthor: Sean Hayes
Sean Hayes is the first non-Korean employed as a foreign attorney by the Korean Court System (Constitutional Court of Korea) and one of the first non-Koreans to be a full-time regular member of a Korean law faculty. He is rated a Top Attorney by numerous legal rating agencies and is known for his street-smart advice, candor and aggressive & non-conflicted advocacy. Sean has been quoted by The New York Times, The Wall Street Journal, Bloomberg, CNN, Money Today, US Today, The Korea Times, The Korea Herald, France 24, Asia Legal Business and other leading news sources. IPG was, recently, rated a top Dispute Resolution Law Firm and Sean a Top 100 Lawyer for International Law.
Can Foreigners buy Real Property in Korea? Korean Real Estate Law for Non-Korean Residents and Non-Residents
Unlike some Asian countries that do not allow or strictly limit foreign ownership of real properties, South Korea has a buoyant market that permits foreigners to purchase real estate and even land in Korea. The major restrictions on ownership of real estate for non-Koreans was lifted during the 1997 Asian Financial Crisis based on the advice of the IMF. The lifting of these restrictions, led, in part, to a commercial and residential real estate boom. The major benefit to Korea was in the high-end commercial and high-end residential real estate space. While the majority of the restrictions were lifted by the Korean government, foreign buyers of real property are required to follow specific legal requirements provided under the Korean law that are not, in most cases, required of Koreans. For an explanation of some of the remaining restrictions of the purchase of real property by non-Korean please see: Restrictions on
Continue readingCalculation of Korean Hourly Wage Rate under the Minimum Wage Act of Korea
Korea’s minimum wage as per the Korean Minimum Wage Act in 2019 is determined by the Minister of Employment & Labor as KRW 8,350 per hour. The latest decisions of the Supreme Court developed a calculation standard/method for determining an hourly wage rate that is not in line with the opinion of the Ministry of Employment & Labor. In many such cases, a Ministry, simply, pushes to amend the law. This matter is important, since the standard hourly wage rate is a necessary mathematical component to calculate the monthly salary of employees. Korean Minimum Wage Act The Korean Minimum Wage Act’s main purpose is to provide a minimum sum per hour to employees that employers must, at least, pay to employees. The fear, in short, is that without a minimum wage, employers may be able to exploit vulnerable workers. The appropriate hourly minimum wage under the Korean Minimum Wage Act
Continue readingKorean Intestate Succession Law: Inheriting Property from your Korean-National Parents
We assist numerous clients concerning intestate succession issues in Korea. Many of these clients are foreigners who are children of a Korean decedent who passed away without a will. Typically, the clients are in need of an asset scrub and assistance in the transfer of the assets to the name of the client and forwarding of the funds overseas. Please note this present article deals, solely, with Interstate Succession under Korean Law. If your parent was, solely, a national of Korea, in most cases, the laws of the Republic of Korea shall apply to the estate of your parent. The relevant law can be found at: Korean Civil Act Part V (Inheritance) For an additional article on Korean inheritance law please see: Korean Inheritance Law: Who Inherits What, When & How in Korea. Inheritance Priority under Korean Interstate Succession Law? The rank of priorities, in Korea, for a person that
Continue readingFinding a Korean Lawyer/Law Firm for your Business in Korea
We obtain numerous emails and calls from potential clients in search of a great Korean lawyer for companies doing business in Korea. The majority of these intakes come from referrals from present clients, referrals from other lawyers and a couple trickle in via this blog. From our contacts, we believe that many businesses in Korea are having a difficult finding attorneys in Korea that have business savvy, the ability to efficiently work for the client and/or an inability to handle the issues the client is handling. The situation seems to stem, primarily, from the high cost of top-notch legal services in the Korea and the lack of many top-notch Korean lawyers working in business space for expat businesses. Additionally, many lawyers, in Korea, are plagued with conflicts. Finding a Lawyer for the Needs of your Business in Korea Consider the following when hiring an Korean Lawyer or Law Firm in
Continue readingKorea Due Diligence for Joint Ventures, Licensing, OEMs and Buying a Korean Company
Intending to execute a joint venture agreement with a Korean company? Buying a Korean company? Licensing technology to a Korean company? OEM with a Korean supplier? Selling to a Korean company?Before going to bed with a Korean company (or individual) do a little due diligence. The motivation for this article is an article by my friends over at the China Law Blog. Due diligence in Korea is not much different than due diligence in China. However, don’t forget what is said below: “get someone who truly knows what he or she is doing” to assist with the due diligence. We see too many Korean lawyers and Korean business professionals with a lot of ego, but little on-the-ground high-level Korean experience or an inability to think strategically and proactively. The few great due diligence professionals in Korea are, typically, not found easily at the ubiquitous Korean Law Firms, because of issues
Continue readingStarting a Manufacturing Business in South Korea: Top 14 Things to Know Before you Start a Business in Korea
Korea, in most cases, is a much better choice for the manufacturing of chemical, petroleum, construction equipment, complex crafted metals, specialty steel, automotive parts, semi-conductor, medical and pharmaceutical equipment and goods than China and most nations in Asia, because of Korea’s skilled work force, government incentives and increasingly transparent business practices. In many cases, manufacturing in Korea will not, in the end, be more costly than manufacturing in China, because of the increased efficiency of Korean workers and the, often, lower cost of doing business. China is no longer cheap and China will never be easy. However, before going into any manufacturing arrangement in Korea here are the Top 14 things you need to know before investing money in Korea in a manufacturing venture or like Korean venture. The list assumes that you will have a local company as your JV partner in this manufacturing venture in Korea (you don’t
Continue readingEEOC Complaints in Korea at Yongsan Army Garrison, Camp Humpreys and Area I: EEO Korea Complaints
This law firm’s U.S. lawyers handle EEOC Korean complaints from our office in Korea; Merit System Protection Board (MSPB) appeals from Korea; grievances under the Negotiated Grievance Procedure from Korea; complaints to the Equal Employment Opportunity Commission (EEOC); lawsuits in U.S. federal court for federal employees working at Yongsan, Camp Humphreys, Area I and throughout the Korean peninsula. We, also, on occasion handle matters stateside and throughout other parts of Asia. These matters are all personally handled by Sean Hayes and his team. Some of the employment law work, in these matters, are essential to be performed in Korea when actions of the U.S. government occur in Korea, thus, IPG has developed a team to handle these matters along with a NY-based associated employment law firm. The majority of our clients working for the U.S. Military are either facing discrimination, a hostile work environment or have been terminated from employment. The
Continue readingHow Foreign Importers Entering Korea May Prosper from the Korean Middle Class in Korea being Screwed by Inflation: Screwflation
This is an older article we posted nearly eight years ago. However, we fear the same is occurring today. Inflation may be a serious issue for Korea in the next couple of years. The Korea Times has reported that stagnant wages and food inflation is leading to “Screwflation” in Korea. This phenomenon is a potential opportunity for importers with an eagerness to directly access the market. The term Screwflation was coined by Wall Street guru Doug Kass. Kass explains the notion in his, typical, straight forward manner: Screwflation, like its first cousin stagflation, is an expression of a period of slow and uneven economic growth, but, its potential inflationary consequences have an outsized impact on a specific group. The emergence of screwflation hurts just the group that you want to protect — namely, the middle class, a segment of the population that has already spent a decade experiencing an erosion
Continue readingMergers & Acquisition Arbitration Matters under Korean Law at the KCAB
Mergers & Acquisitions (M&As) lead to disputes around the world, many of which are complex and involve money that may change substantially the future of a company, shareholders, employees and other stakeholders. Korea is no different in this respect. Korea witnessed the number of its cross-border transaction disputes explode during the 1997 IMF crisis and continue to steadily increase ever since. Many of these issues ended in arbitration and many others lead to criminal charges and into the Korean courts. While there are no readily available published statistics on the number of M&A transactions relating to Korea that led to arbitration , market trends show that the number of disputes have grown in relation to the overall growth of the M&A market. This article shall discuss the frequency of M&A disputes in Korea, the most common M&A issues arbitrated in Korea, as well as the procedural norms for damages and
Continue readingEnglish-Speaking Criminal Defense Lawyers in Korea: Defense Lawyers to Hire and Not to Hire?
In all cases, in Korea, where you are accused of a crime and you fear that you may be sentenced to time in jail, may be deported or the conviction may harm your future, hire, quickly, an experienced and proactive English-Fluent Korean criminal defense lawyers prior to any interrogations by the Korean police or prosecution.Sadly, few lawyers, in Korea, are useful for criminal matters, since few lawyers are proactive when it comes to matters concerning the Korean government, experienced in criminal matters for foreigners or willing to upset the status quo (aggressively engage the prosecutor and court). Please do yourself a favor, forgo any options provided at no or low cost unless you have no other options. The reality is the most important decision you shall make, at this time, is the choice of a lawyer. If you are under SOFA, you may choose any lawyer you want as noted
Continue readingProvisional Attachments of Assets in Pending Litigation in Korea Courts
A party attempting to collect on a debt or potential liability based on breach of contract or torts in Korea may obtain a Provisional Attachment of an Asset. Another useful tool to expedite proceeding in a Korean civil matter is to Obtain a Payment Order from a Korean Court. A provisional attachment is considered provisional, since the attachment is executed prior to the final judgement. The, facial, purpose of a provisional attachment is to secure assets necessary for enforcement in cases where a defendant may conceal or dispose of assets. However, a provisional attachment, often, encourages settlement. We advise most creditors attempting to enforce a debt or potential debt against a debtor is to obtain a provisional attachment if the debtor is a company or individual without significant tangible assets. Companies with significant assets are likely to pay debts after a judgement and, normally, are not significantly harmed by the attachment. Courts
Continue readingLiquidated Damages v. Penalties in Korean contracts
As a NY attorney, it’s a bit strange for me to read a Korean contract and see how the word “penalty” is used. In the United States (as well as other common law jurisdictions), when a contract contains a “penalty,” the clause is, often, invalidated. Korea, however, allows some “penalties” in contracts. Cutting to the chase, this is merely an issue of confusing and overlapping terminology. But since its confusing, it is worth explaining. To start with, a bit of background on liquidated damages. Liquidated damages refer to damages, the amount of which, the parties designate during formation of a contract as compensation for non-breaching parties in the event of breach. In the US and other common law jurisdictions, liquidated damages clauses are invalidated if the purpose is to punish the breaching party, rather than to compensate the injured party. These clauses are referred to by the court as “penalties.”
Continue readingJurisdiction and Choice of Law Issues in Agency Agreements
In drafting and negotiating a Korean commercial agency agreement between a principal located in one country and an agent located in another country, proper consideration needs to be given to the choice of law regarding the governing law and jurisdiction of such an agreement. Jurisdiction determines which country’s courts will hear any proceedings that may be brought in relation to the agreement, whilst governing law is the law that shall be applied by the courts hearing any such proceedings that may arise under the agreement. Ideally, the parties to the agreement should expressly agree as to choice of jurisdiction and governing law. A governing law clause will set out the parties’ choice of the law that will apply to the parties’ agreement, and a jurisdiction clause will set out the parties’ choice as to jurisdiction. These aforementioned clauses are – in general – considered by any courts (for the exemptions
Continue readingTermination of Commercial Agent/Distribution Agreements in Korea: Korea’s Agent Compensation Rule
In many cases of termination of a distribution/agent agreement in Korea compensation must be paid to the commission agent. In many cases, the same rules are applied to distributors. The law on the termination of Commission Agent-type agreement is governed, mainly, by the Commercial Act of Korea and its enforcement decrees. Korea law does not facially differentiate between termination and expiration of agent/distribution agreements. The following explanation is, only, a brief overview of Korea’s Distribution/ Agency Law relating to termination of a distributor/commercial agent. Please note a much more nuanced explanation is necessary and essential for any manufacturer or supplier doing business with a commercial agent in Korea. We suggest taking a look at an article we wrote on the selection of a Korean Distributor. The article may be found at: Finding a Distributor or Agent in Korea. Additionally, it is advisable to read an article we wrote on distribution agreements.
Continue readingKorea’s Criminal Procedure Act: Pre-Trial Detention in Korea
The Korean Criminal Justice System works, in many aspects, very differently from the American Criminal Justice System. One aspect of the system that leaves many of our clients puzzled is the pre-trial detention system in Korea. Korea’s Criminal Procedure Act Article 92 details the maximum detention periods while the Korean prosecutor’s investigation is pending. The following does not apply, in many respects, to those under the SOFA: After being arrested, a defendant may be held for up to 48 hours without being officially charged. In the United States, in most cases, a defendant may, only, be held for 24 hours. Depending on the charges in the case, criminal defendants will be held in jail throughout the entirety of the prosecutor’s investigation. The opportunity for bail is very limited. This means that, after the initial hearing in front of a Korean judge an arrest warrant will likely be issued for your
Continue readingEnforcing Punitive & Liquidated Damages Awards against Korean Companies via Contracts with Foreign Subsidiaries of Korean Companies
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 Korean Courts, in Korea, the power to not recognize a damage award that the Korean 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 damages may include liquidated, punitive and non-“actual” damages. The American importer, then, attempts to enforce the judgment in Korea. There is a simple
Continue readingDistribution Agreements in Korea: Crawl before you Walk
Prior to going into any relationship with a distributor/agent in Korea, please read my post entitled: Finding a Korean Distributor: The Top 10 Things to Know Before Going to Bed with a Distributor in Korea. Please read that post in combination with this post, prior to engaging a distributor in Korea. We see too many Korean distribution and agency agreements that are mere spun U.S. or European agreements. Please have your Korean distribution agreement and all agreements you have in Korea drafted by an experienced and proactive attorney that has on-the-ground experience in Korea. We see too many issues that could have been easily resolved by a carefully drafted agreement and a little due diligence. Issues to consider for your Korean Distribution Agreement: Will your distributor in Korea be your agent? If the Korean distributor is an agent, generally, you will, only, be paying your agent in Korea a commission and you
Continue readingLiquidated (Penalty) Damages Necessary in Most Korean NDA and Non-Compete Agreements
For any company engaged in negotiations, agreements, pre-M & A due diligence, OEM outsourcing or other activities with a Korean business or individuals that may lead to you disclosing your companies intellectual property, know-how or other proprietary information, always include in your no-competition, non-use, non-circumvention and non-compete agreements a liquidated damages (Penalty Damages) clause. Without a Penalty Damages Clause – good luck in proving damages when a breach occurs. If the other party refuses to sign the clause, this is good sign that the party will breach. The clause is of course, only triggered when a breach occurs. I, recently, had a client that was very worried about losing “goodwill.” Easy solution, blame the “lawyer.” For companies that are not engaged in active, continuous and substantial business in Korea, the chance of finding evidence of damage, after a breach, is remote – best. The reason stems from proof of market potential in
Continue readingEntering into a Joint Venture/Partnership in South Korea?
One of the major parts of my law practice for international clients, in Korea, is the structuring of joint ventures and the resolution of joint venture disputes in court and through arbitration. I find, in most of these cases, the non-Korean party is not in need of a joint venture with a a Korean party to succeed in Korea and the Korean party does not realize or has no intent in satisfying obligations under the joint venture agreements. The parties are commencing a relationship, thus, with an immediate potential for failure. Thus, many disputes are caused by the realization by the non-Korean party that he/she doesn’t need the Korean party and the realization by the non-Korean party that the Korean party had no intent, at signing, in following the joint venture agreement. Do You Need a Korean Joint Venture to Succeed in Korea? We find that a joint venture is,
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