The Chair of the Legislation and Judiciary Committee in Korea proposed an Amendment to the Korean Act on Regulation and Punishment of Criminal Proceeds Concealment (hereinafter as “Act on Punishment of Criminal Proceeds Concealment”) on April 4, 2019. Some crimes shall be added to the list of “serious crimes” stated in the aforementioned Act. Amendment to the Act on Punishment of Criminal Proceeds Concealment The list of “serious crimes” (also “specific crimes”) as defined in Art. 2 (1) Korean Act on Punishment of Criminal Proceeds Concealment shall be extended with the proposed Amendment. These newly added “serious crimes” shall be subject to a proper punishment under this Act, especially for concealing, disguising and/or exchanging criminal proceeds. In addition, the collection and/or confiscation of such illegally earned proceeds shall be able. The newly added ‘serious crimes’ under this Act shall be for instance: Confinement, human trafficking, kidnapping, abduction, etc., as well
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.
Tax Breaks for Korean Landlords: Real Estate Taxation Basics
Proposed by the Chairman of the Strategy and Finance Committee of the Republic of Korea on September 20, 2018, the Amendment to the Korean Restriction of Special Taxation Act came into force on January 1, 2019. The amendment has decreased the taxation burden of some landlords. The Act was amended in favor of Korean landlords who renew long-term rentals with tenants by charging a lower increase of rent by a percentage lower than a percentage set by Presidential Decree. This Act shall reduce, in general, the tax burden of these Korean landlords. Art 96-2 Restriction of Special Taxation Act of the Republic of Korea states that “…when a national of the Republic of Korea who runs a housing rental business has earned a sum from that business a total income not exceeding 75 million won in a single taxable year, and has rented a commercial building to the same tenant
Continue readingKorean Immigration Law: Challenging a Korean Immigration Deportation/Exit Order in Korea
Being convicted of a crime in Korea, may lead to deportation. If you are issued a deportation/exit order from the Korean Immigration Service, you do have avenues to reverse this deportation order within the courts. Korean Immigration Law is rapidly changing – please check back to The Korean Law Blog for the latest updates from Korean Immigration lawyers from IPG’s Korean Immigration Law Team. The Courts in Korea have jurisdiction to review all exit/deportation orders issued by Korean Immigration. Korean courts will look, generally, to whether: A. The order of Korean Immigration complies with the law; and B. Whether Korean Immigration has abused its discretion. Under Korean law, Immigration Services of Korea has broad power in the issuing of deportation and exit orders. Korean Immigration law imposes restrictions on actions by Korean Immigration under certain visa categories. If Immigration in Korea complied with Korean law, a Korean Immigration’s order may,
Continue readingNew Provisions regarding the Korean Act on Reporting and Using Specified Financial Transaction Information
The Amendment to the Act on Reporting and Using Specified Financial Transaction Information of Korea (hereinafter as “Amended Financial Transaction Information Act of Korea”) focuses on strengthening Korean legal provisions related to money laundering as well as implementing a “global standard” proposed by the Financial Action Task Force on Money Laundering. The Amended Financial Transaction Information Act of Korea shall enter into force on July 1, 2019. Major provisions of the Korean Act on Financial Transaction Information The purpose of the Act on Reporting and Using Specified Financial Transaction Information is to “…provide for matters concerning reporting on and use of specified financial transaction information necessary to regulate money laundering and financing of terrorism through financial transactions, such as foreign exchange transactions, thereby contributing to preventing crimes and further establishing a sound and transparent financial system.” (Art 1). The major provisions of the prior Act are: Transactions of expected illegal
Continue readingRelease of an Arrested Vessel in Korea: Maritime Liens in Korea
We wrote an article about the Arrest of Vessels in Korean waters in a post last week. The article is a useful guide for those considering arresting a ship in Korean waters. The post may be found at: Arrest/Attachment of Vessels in Korean Waters: Maritime Liens for Creditors in Korea. This post describes how you may obtain the release of a vessel arrested in Korea waters. The Korean Courts have put in place an efficient post-arrest procedure that, often, quickly allows the release of an arrested ship. Post-Arrest Procedures in Korea for Ships Arrested in Korean Waters In the post-arrest procedures in Korea, the burden is on the arresting party to establish that the order of arrest, initially granted, should not be vacated. These hearings are often a tool to persuade a judge that the arresting party should post a security or the security should be increased. In all but
Continue readingArrest/Attachment of Ships at Korean Ports: Maritime Liens in Korea
The arrest of vessels/ships in Korea is a common tool to satisfy judgements against debtors. Korean courts allow the ex-parte arrest of ships. The court, normally, does not request from the Korean counsel of the creditor/claimant evidence of how long the ship will remain in Korean waters, as is, sometimes, the case in other neighboring jurisdictions. We find Korea to be a much easier destination for arresting vehicles than many other Asian nations, because of the efficiency focus of the Korean court system and the less than efficient other Asian jurisdictions. Typically, the arrest action will take a few days to complete. The major ports in Korea that an arrest may be executed at are: Busan ,Jinhae, Incheon, Gunsan, Masan, Mokpo, Pohang, Donghae, Ulsan, Yeosu, and Jeju. ARREST OF FOREIGN VESSEL IN KOREAN WATERS There are two different ways to arrest a vessel in Korean waters. 1. Preliminary Attachment The
Continue readingKorean Patent Law’s Trade Secret Protection: Amendment to Trade Secret Law in Korea
The amended Patent Act of Korea (“Korean Patent Act”) and the amended Unfair Competition Prevention and Trade Secret Protection Act (“Korean Trade Secret Protection Act”) of Korea shall enter into force on July 9, 2019. The most important key developments are great criminal penalties for trade secret misappropriations; damage awards up to three times of the actual damage regarding infringements of patent rights or trade secret rights; eased litigation requirements for the claimants; and revised basis for calculating royalty damages. These amendments are expected to lead to a heightened protection for intellectual property rights in Korea. The 2019 Major Key Changes in the Korean Patent Act and the Korean Trade Secret Protection Act: Increased Criminal Penalties under the Korean Trade Secret Protection Act Under the current regulations, a criminal penalty for a trade secret misappropriation is narrowly defined and considered by many legal practitioners and academics as not protective enough
Continue readingAmendment to Korea’s Occupational Safety and Health Act in 2019
The amended Occupational Safety and Health Act of Korea (hereinafter as “OSHA”) entered into force on January 15, 2019. One major aspect of the revision is that it has raised the risk of liability of representatives of institutions and companies and companies for workplace industries in Korea. The amended Korean OSHA law is expected to increase the risk to company management, increase liability of companies and increase options for employees that are perceived to have been harmed because of the actions or inaction of employers. Korean OSHA Basics Importer or Manufacturer of harmful and/or dangerous chemicals should draft a Material Safety Data Sheet and send it to the Ministry of Employment & Labor for approval. The Material Safety Sheet is publicly published – in most cases. Hazardous work shall not be contracted out by companies to third parties. However the amendment provides some notable exceptions (beyond the scope of this
Continue readingSucceeding in Business in Korea
Since 1977, I have observed the rise and fall of many foreign companies in South Korea. I have witnessed the trials and tribulations as a bank employee, a high-tech salesman, a country manager and as a business consultant of foreign and Korean companies doing business in Korea . Bluntly speaking, while some foreign ventures have had some unlucky breaks, those companies that have succeeded in the Korean market have done so for good reasons. And those who have failed have done so, largely, because of their own inadequacies and often the lack of understanding of the needs of businesses in the Korean market. Those companies who for a period “succeed” do so by largely having some kind of a monopoly in technology, a lock on a particular resource, or an overwhelming marketing advantage that makes Korean copycats look decidedly second class. But many initially successful companies ultimately fail by not getting adequately
Continue readingSafety Measures in Korean School Buses in Korea via the Amended Road Traffic Act of Korea
The Amendment to the Korean Road Traffic Act (hereinafter as “ Korean RTA”) is in force since March 2019 and shall generally increase the safety for children in school buses in Korea. The Amendment was a reaction to an accident that occurred with in school buses, including children, which got physically harmed or even died. An infamous incident involved a young child that left unattended in a bus and died because of, among other things, heat exhaustion. Korean RTA drastically changed, the following brief snippet is, only, the tip of the iceberg. If you are running a business that transports children, we, highly, recommend having your law firm in Korea walk you through this law. Two Highlights of the Amendment to the Korean Road Traffic Act 2019 “A driver of a school bus for children shall operate a device that verifies that the discharge of children from the bus has
Continue readingÜber IPG
Unsere weltweit-erfahrenen und lokal-vernetzten englisch-sprachigen koreanischen Rechtsanwälte und Business Professionals unterscheiden sich bewusst von der Menge. Wir lieben es an den kompliziertesten und umstrittensten Rechtsfällen in Korea zu arbeiten und genießen es besonders vorausschauende und effizient gewiefte Rechtsberatung zur Verfügung zu stellen. Bewusst anders Wir unterscheiden uns bewusst von anderen koreanischen Rechtsanwaltskanzleien. Koreanische Rechtsanwaltskanzleien werden oft für ihren Mangel an Bereitwilligkeit oder der Fähigkeit, eine effiziente, proaktive und konfliktlösende Rechtsvertretung für Klienten zur Verfügung zu stellen, kritisiert. Klienten und internationale Rechtsanwaltskanzleien kommen oft zu IPG, nachdem sie diese „koreanische Realität“ erlebt haben. Unsere Firma und ihre koreanischen und internationalen Rechtsanwälte wurden von führenden rechtlichen Ratingagenturen wegen ihrer starken lokalen Vernetzung, ihres modernen Fall-Managementsystems und ihrer realen vor Ort gewonnen internationalen Rechtserfahrung gepaart mit einer intensiven Leidenschaft für Erfolg anerkannt. International bewertet Unzählige internationale rechtliche Ratingservices haben unsere Anwälte als führende Anwälte im Bereich Wirtschaftsrecht, Zivilprozess, Entertainmentrecht, Franchiserecht und Strafverteidigung anerkannt.
Continue readingÜber den Autor: Sean Hayes
Sean, und seine Anwaltskanzlei, werden oft vorzugsweise gegenüber ubiquitär koreanisch-basierten Anwaltskanzleien gewählt, wenn konfliktfreie und aggressive Rechtsvertretung für den Erfolg essentiell ist. Die Artikel in diesem Blog werden von Sean Hayes, ehemaligen Richtern, erfahrenen koreanischen Anwälten und anderen Anwälten von IPG für Sie zur Verfügung gestellt. Der New Yorker Anwalt Sean Hayes, als Sohn eines irischen Vaters und einer italienischen Mutter, wuchs sowohl in Connecticut und New York auf. Er ist von amerikanischer und italienischer Nationalität und permanenter Einwohner in Korea. Er hat seine rechtliche Ausbildung in Korea, den Vereinigten Staaten und im Vereinigten Königreich erhalten. Sean Hayes ist der erste nicht-Koreaner beschäftigt im koreanischen Gerichtssystem (koreanisches Verfassungsgericht) und einer der ersten nicht-Koreaner als reguläres Vollzeit-Mitglied einer koreanischen Rechtsfakultät. Sean ist bekannt für seine über 16-jährige rechtliche Berufserfahrung, für seine aggressive Anwaltschaft und redliche NY-stylische gewiefte Rechtsberatung. Sean arbeitet mit einem Kader erfahrener und vernetzter ausgeschiedener Richter, Staatsanwälte, interne Rechtsanwälte,
Continue readingLicensee has Standing to Challenge the Validity of a Patent in Korea. Korean Licensing & Royalty Law Updates
Prior to a recent holding by the Supreme Court of Korea, the Korean Supreme Court had conflicting holdings on the definition of an “interested party” under Korean Patent Law. In order for a party to challenge the validity of a patent, in Korea, a party challenging the patent must be an “interested party.” Until this year, it was not clear whether a licensee of the patent in question is an “interested party” with standing to challenge the patent in Korea. A recent holding by the Supreme Court shall, likely, lead to substantially increased risk of non-payment of royalty payments and litigation in Korean courts. We, thus, suggest all that are receiving, or are expected to receive, royalty payments from Korean companies to have a comprehensive review of your patents and licensing agreements. A good deal of the risk can be mitigated by a nuanced license agreement and a Korean-tailored patent.
Continue readingKorean Act on Special Cases Concerning the Establishment and Operation of Internet Banks
In September 2018 the Korean National Assembly passed the Korean Act on Special Cases Concerning the Establishment and Operation of Internet Banks (hereinafter as “Act on Internet-Only Banks”), which is in force since January 2019. The major facial intent of the Act on Internet-Only Banks is to “…encourage innovative enterprises to enter the financial market while laying the legal framework for the convergence of information and communications technologies (ICT) with financial services, and the creation of new economic growth drivers.” One of the main impetus for the Moon Administration related to this Act was to allow individuals and companies that may have a more difficult opportunity to obtain credit to obtain credit. The foregoing is, only, intended as a brief teaser and not anything more than to provide a basic understanding of this Act. Korean Act on Special Cases Concerning the Establishment and Operation of Internet Banks 2018 “Internet Banks”
Continue readingMaterial Breach of Korean Contracts Under Korean Law: Primary Obligations vs. Secondary Obligations in Korea Courts
In most Western nations a “material” breach of a contract leads to the non-breaching party not having to perform its obligations under the contract, while allowing the non-breaching party to immediately sue for all damages (or performance).The Restatement (Second) of Contracts 241 notes that the following criteria can be used to determine whether a specific action/inaction constitutes a material breach: “In determining whether a failure to render or to offer performance is material, the following circumstances are significant: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or to offer
Continue readingSean Hayes attended the Korea Business Forum
The Korean Business Forum is one of the leading private groups of senior executives in leading companies doing business in Korea. The group meets, at least, monthly to discuss major issues affecting businesses in Korea. I, highly, recommend applying for membership in the Korean Business Forum. This month’s meeting addressed issues facing the Korean economy, the new labor policy of the Moon Administration, and major reasons why Korea is still important for international businesses. Some interesting takeaways: Korea is the 11th largest economy by nominal GDP in the world. Korea is the 4th largest economy in Asia. Korea is the leading chip manufacturer and shipbuilder in the world. Korea is the 4th largest oil producer and 6th largest car maker in the world. Korea is the 6th largest exporter in the world. Korea’s household debt is one of the highest in the world. Korea ranks low in the World Competitive
Continue readingCorruption in Korea: What is the Crux of the Problem? by Tom Coyner
Whenever I read a news item regarding Korean corruption, I have mixed feelings. Usually the article is based on the latest finding by a well-meaning NGO that focuses on corrupting influence of big business on government without adequately addressing the root causes or even the breadth of corruption. Korean corruption doesn’t limit itself to envelopes and car trunks of cash being paid by business people to government officers. *The following article is a re-posting of an article by Tom Coyner. The article first appeared on this law blog in 2012. The issues remain the same and we thought this was an excellent time to repost this excellent article on an important issue for those doing business in Korea. So one may ask oneself, “Can Korea end its many forms of corruption?” That is the essential question, and the obvious answer is “no.” I don’t mean that as a cynical observation.
Continue readingPiercing the Corporate Veil in Korea: Suing Shareholders of a Corporation
It is possible, in some situations, for shareholders to be sued for the acts of a corporation. The concept is called “piercing the corporate veil.” The Supreme Court of Korea has noted that the corporate veil may be pierced and a shareholder may be sued: “Where a company maintains the external appearance of a juristic person while it merely takes the form of a juristic person and, in substance, it is equivalent to other person’s private enterprise behind the corporate veil or used without justifiable reason in order to circumvent the application of laws against the person behind the corporate veil, the denial of any responsibility of the person behind the corporate veil with respect to an action of the company, based on the ground that such person is a separate entity and the legal effect of such action is attributed only to the company, cannot be permitted. It cannot
Continue readingBuilding Systems Before JVs in Korea to Build Trust between Partners
A blog referred to me by the China Law Blog has a wonderful post on Developing Trust in China by Building Trustworthy Systems/Processes. The same advice given in this blog post is relevant to work done in Korea, Southeast Asia, China and even the West. We believe that the verification of the developing and implementation of these system is, often, necessary before building a joint venture relationship with a Korean company. The value of building systems is not to be underestimated in Korea. Koreans, in most respects, are wonderful at performing tasks that are well dictated and explained. While in the West, we often appreciate more autonomy and, often, don’t strive when systems are too rigid. In the East, many strive on ordered guidance. My law firm often works with business consultants to assist client in implementing systems that reward following these systems/processes. These “systems” are, often, incorporated by reference
Continue readingContract Drafting in South Korea
The following post considers some of the basics of contract drafting in South Korea. The following post is meant to be, only, a basic explanation of the basics of a good Korean contract based on a few observations. This post is not meant to be an exhaustive explanation of this issue, books have been written on contract drafting and we will not be drafting a book with this post. The main purpose of drafting a contract is to avoid a dispute. This article and a great Korean-experienced lawyer with an understanding of business in Korea and your industry should assist you in avoiding a legal dispute in Korea. Basics Considerations Before Signing a Contract in Korea Contract Clarity. We see all too often, Korean contracts that lend themselves to unnecessary ambiguity. In some cases, ambiguity may be a benefit to our clients doing business in Korea, but in other cases, ambiguity
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