Korean Cryptocurrency Case Filed to the Korean Constitutional Court: Korean Bitcoin Updates

The author of this blog, formerly worked for the Constitutional Court of Korea and he is excited to see this matter being litigated in Korean courts.  The issue, as I have always noted, is simply if government are willing to protect the freedom of individuals to trade and speculate in asset classes of the choosing of the investor.  While, I am far from sold on Bitcoin (and other Alt Currencies) as a long-term asset class plays – of course any free democracy shall allow its citizens to invest in asset classes the government doesn’t favor.  The key to this issue, seemingly, is just if Alt Currencies shall be considered mere asset classes. As the reader likely knows, various branches of the Korean government have noted that the Korean government shall either ban Bitcoin exchanges in Korea, prohibit banks from linking accounts to exchanges or otherwise prohibit the use of Alt

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Korea Increases Penalties For Data Breach and Unauthorized Transfer of Data: Korea Communications Commission

In March 2016 Korea made amendments to its Act on the Promotion of Information & Communications Network Utilization and Information Protection (“Act”). The purpose of the Act is to both facilitate the utilization of information and communications networks and regulate for the protection of personal information including that of users of online service providers.  “Online service provider” includes any commercial website operator or telecommunications service provider; and “user” is defined as any person that uses the information and communications services of an online service provider. The Act covers the collection, storage, use, processing, provision, destruction and similar disposition of personal information. The Act applies to Korean online service provider companies and, though the Act does not specify, may apply to foreign companies. In determining whether the Act will apply in the case of a foreign website operator, the Korea Communications Commission (KCC) would likely consider factors including the location of

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Korean Court Upholds Expulsion of Law Student at Judicial Research & Training Institute for Adultery

A male law student, expelled from the Judicial Research and Training Institute for having an affair with another law student, has just had his appeal to be reinstated denied. The male student’s mother-in-law made the situation public after her daughter committed suicide after finding out about the affair. The male law student was charged with adultery and expelled from the JRTI.  Although he was found guilty in a lower court of adultery, during the course of his appeal, the Constitutional Court ruled South Korea’s adultery law unconstitutional, thus acquitting him of criminal wrongdoing. Although the law student’s criminal appeal was successful, the Court on Tuesday cited the seriousness of the case and denied his reinstatement to the JRTI. The female law student, with whom the male law student had an affair, was suspended from the JRTI for three months. Before a South Korea’s law school system changed in 2007, students

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South Korea’s Military Conscription Law Challenged by Religious Conscientious Objectors

South Korea’s mandatory military conscription law is once again being challenged by religious conscientious objectors. The Constitutional Court held a public hearing on Thursday to determine whether religious objectors to military service are still subject to the same punishments that are given to other citizens who refuse to perform their military service. South Korean law mandates that citizens who refuse to perform military service, without a valid reason, are subject to imprisonment for up to three years. Currently, religious conscientious objections are not recognized as a valid reason to not serve.  The Constitutional Court upheld the conscription law when it was challenged in 2004 and 2011. According to a legal representative of conscientious objectors who filed a petition against the law, 706 young men are currently imprisoned in South Korea for refusing to perform military service – many due to religious conscientious objections. A lawyer for South Korea’s Defense Ministry,

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Korean Administrative Court Stands Up for the Right to Assemble: Korea Queer Culture Festival

The Seoul Administrative Court has ruled in favor of the organizers of the Korea Queer Culture Festival in a case concerning the right to a permit to assemble. Because of the very vocal opposition of fundamentalist Christian groups, the NamDaeMoom Police refused to grant a permit to assemble.  These fundamentalist Christian groups argued, and the NamDaeMoon Police Department agreed, that amongst other things, that these Christian groups opposition to the event and the event itself will cause severe traffic disruptions and may lead to damage to the public safety (e.g. clashes between the religious group and festival attendants). The Court opined that a permit to assemble may only be denied when public safety is “directly” threatened and only as a “last resort.”  The Court noted, inter alia, that in the present case, no indication of a direct threat to public safety was established and the measure was too extreme. The

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Korea is a Country of the Future – and Always Will Be by John Lee

John Lee at The Korean Foreigner has a great post today related to Korea’s step back in time.  He, kindly, allowed me to post his article on my blog.  “On December 18th 2014, IKEA, the world’s largest furniture retailer, opened its first Korean branch in Gwangmyeong, Gyeonggi Province. The store is 25,759 square-meters (approximately 277,267 square-feet) in size and it is accessible via train and three inter-city express highways. It would appear that IKEA’s business is booming. So much so that the THREE inter-city express highways that lead to IKEA are congested with cars – all of them customers who want to buy their next furniture item from IKEA. Apparently, doing well in business is not always a good thing. A little over two weeks after IKEA opened its doors to the public, the Gwangmyeong Municipal City has demanded that IKEA come up with a “dramatic breakthrough” by January 7th

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Selection of Justices at the Constitutional Court Fundamentally Flawed?

The Korean Constitutional Court has established a research institute that has, recently, criticized the appointment system at the Constitutional of Court of Korea. The Court has nine justices that are all appointed by the nation’s President.  However, three of the justices are selected by the Chief Justice of the Supreme Court,  three are selected by the National Assembly and three are directly selected and appointed by the nation’s President.  This Constitutional Court research institute has criticized this system as, potentially, leading to political bias, thus, obviously, believing that some at the Court justices are influenced by those that appoint the Justices. When I worked at the Court, I never saw bias based on the appointing power, however, the fact that most justices have no or little experience other than being a judge or prosecutor leads to the lack of a nuanced understanding of business and societal dynamics. The research report

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The Korean Law Blog cited by the Washington Post on the Freedom of the Press in Korea

We are proud to note that The Korean Law Blog was cited by the Washington Post on an article discussing the Freedom of the Press in Korea.  The article quoted our translation and comments on a landmark Supreme Court case on the issue of the freedom of speech in Korea. The Washington Post article may be found at: In South Korea, journalists fear a government clampdown on the press. The article notes, in part, that: “In the 27 years since democracy arrived here, South Korea has become home to rowdy election campaigns, a vibrant protest culture and dozens of daily newspapers traversing the full political spectrum. It’s a place where people don’t have to be asked twice for their opinions. But now, analysts and journalists are expressing concern that a central tenet of democracy — a free press — is under threat. President Park Geun-hye’s administration has launched an aggressive

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CLIENT ALERT: Advice to the Press, Bloggers & Corporations Concerning Free Speech Protection in Korea

Cheong Wa Dae (Korea’s Office of the President) has been instrumental in the filing of 13 lawsuits against media sources.  Six cases are still pending including cases against reporters/media from: Hankyoreh (Korean Liberal-leaning newspaper); Segye Ilbo (Korean Conservative-leaning newspaper); Chosun Ilbo (Korean Conservative-leaning newspaper); Sankei Shimbun (Japanese Conservative-leaning newspaper); CBS News; and A Sisa. The majority of the cases were filed by officials at Cheong Wa Dae or by a conservative civil group that supports President Park Geun-hye. Reporters, corporate PR departments and bloggers please be aware that, in most cases, the truth, in Korea, is not a defense to a criminal or civil defamation charge. In these changing times, in Korea, it is best to consult with an attorney concerning any news you intend to report on concerning issues that Cheong Wa Dae considers vital.  Please obtain an attorney with significant experience in Constitutional Law and litigation.  Your corporate

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Defamation Law Under Korean Law

As an attorney educated in the United States, one of the greatest differences I’ve noticed between the Korean and American legal systems is in the area of defamation. Back in the US, the extent to which speech can be curbed by the law is tempered by First Amendment protections.  US law protects truthful statements and even false statements, when in the form of parody, hyperbole, or not with malice etc. In the case of potentially defamatory speech, the burden falls on the accusing party to prove the statement false. This, of course, is all in the name of safeguarding Constitutionally guaranteed freedom of speech, and its something entirely different from Korean law. Essentially, in Korean law, reputational damage is the core element in a defamation claim, rather than the truth or falsity of the statement. Thus, very much unlike US law, Korean defendants in defamation suits have, typically, the burden

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Investor-State Disputes/Arbitration in Korea: ABA Dispute Resolution Magazine

The American Bar Association Dispute Resolution Magazine has an interesting article on Investor-State Disputes that is relevant to Korea.  The article appears in the Fall 2013 edition of the magazine. Some of the “top” law firms in Korea have been notoriously conflicted – thus leading to choices made in agreements that are less than favorable to clients.  This has led, in part, to South Korea being perceived as not a foreign-friendly destination for direct investment.  Additionally, the courts, recently, invalidated an arbitration award against the Korean government – thus frightening more investors from the Korean shores.  Hopefully, Korea has learned from these mistakes.  Korea is a developed market with a vibrant local economy.  Protective measures are no longer needed.  Enforcement of the next arbitration award against the Korean government can be a way to enhance the international reputation of the Korean courts and, thus, increase investor confidence.    The article

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Enforcement Decrees are Becoming more Common in South Korea

The Park Administration’s usage of enforcement decrees, an executive decision-making process that allows the administration to bypass the National Assembly, has been steadily increasing according to a new article from The Hankyoreh. The article mentions that appeals filed at the Constitutional Court seeking relief from enforcement decrees have shot up from a low of 46 in 2006 to 87 in 2012.  From the article: “Enforcement decrees are often used to overpower the law for political ends. Perhaps the most prominent recent case of this was the decision to strip the Korean Teachers’ and Education Workers’ Union (KTU) of its legal status. That Oct. 24 decision by the Ministry of Employment and Labor was based on Article 9, Item 2 of the enforcement decree for the Trade Union and Labor Relations Adjustment Act, which states that an established union ‘must be notified that it is not viewed as a labor union

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Should UPP be Banned in Korea? Korea Government Files to Court to deregister Pro-North Party

The Park Administration as filed to the Constitutional Court of Korea a complaint to disband the leftist UPP.  The petition claims that the party engaged in pro-North Korea activities.  The case, also, calls for the immediate suspension of six of the lawmakers of the party. Justice Minister Hwang Kyo-ahn noted to the press that:  “We have determined that the UPP’s platform and its objectives are intended to favor North Korean socialism, which goes against the free democratic basic order of our Constitution and that the activities of the RO (Revolutionary Organization) which forms the party’s core, were in line with North Korea’s strategy to revolutionize the South.”   This is not mere politics.  Evidence exists, including tape recordings, that establish that a leader of the UPP called on members to prepare for a war to assist North Korea in overthrowing North Korea. At least six of the nine justices at the

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Korea’s Data Privacy and Data Protection Law

Korea’s Personal Information Protection Act has replaced, in whole, the Public Agency Data Protection Act of Korea and, in part, the Act on Promotion of Information and Communications Network Utilization and Information on September of 2011. The new privacy law is one of the strictest laws in the world.   Please seek advice prior to engaging in any business where data of customer will be collected.   Over the next couple of weeks please check back to this blog.  We will be updating the reader on: Basics of the new Korea data protection law; The Data Protection Commission; The Personal Information Dispute Mediation Committees; The Korea Communications Commission; The Korea Internet & Security Agency; also We will provide sample privacy and data collection statements. _______Sean Hayes may be contacted at: SeanHayes@ipglegal.com. Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the only non-Korean to have

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Visa Benefits for Korean Homosexuals in America: Defense of Marriage Act Held Unconstitutional

The U.S. Supreme Court, in a 5-4 holding that was split on the typical ideological camps, declared unconstitutional the U.S. Defense of Marriage Act.  The Defense of Marriage Act denied federal benefits to same-sex spouses.  In declaring the law unconstitutional the majority opinion by Justice Kennedy opined that the law simply; “writes inequality into the entire United States code.”   Justice Kennedy went on to opine that the law, in of itself, is “demeaning” and “humiliating” to gays and lesbians.  Justice Scalia, in dissent, noted that: “Favoring man-woman marriage no more ‘demeans’ and ‘humiliates’ other sexual relationships than favoring our Constitution demeans and humiliates  the governmental systems of other countries.” The largest affect for non-Americans will be the benefit of a U.S. spousal visa and permanent residency.  Thus, for example, a Korean man that marries an American man will be eligible for a K-1 Fiance visa and permanent residency. _________Sean Hayes may

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Censorship Prohibited in Korea: Entertainment Law Cases in Korea

Constitutional Court Decision 93Hunga13 delivered on October 4, 1996【Request for Adjudication on Constitutionality of Motion Pictures Act Article 12, etc.】 Translation of Official Court Summary  a. Censorship noted in Constitution Article 21 Section 2 is in effect by authoritative power and is a measure of prevention, a system that prevents the iteration of unapproved ideas or opinions in order to control, by evaluating the content of ideas or expressions. Thus, censorship generally entails four requirements: obligation to submit for approval, evaluation procedure in advance by an authoritative power, prohibition of unapproved expression, and a compulsory measure to accomplish the evaluation. b.  Although the Constitution Article 37 Section 2 states the freedom and right of citizens may be restricted by Act for national security, the maintenance of law and order or for public welfare, the Constitution Article 21 Section 1 states censorship, to restrict the freedom of speech and the press,

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South Korean’s Aiding North Korean Hackers Arrested in South Korea by Seoul Central District Prosecutors’ Office

The Seoul Central District Prosecutors’ Office has announced that they have arrested the owner of a South Korean-based company and its employees for violation of the National Security Law.  The owner of the company was arrested and detained and the owner’s older brother and the employees of the company were arrested, but were released pending further investigation. The arrests were, apparently, in relation to the recent cyber attacks by North Korea and, also, the alleged operation by the arrested of an illegal gambling site, futures trading site and spam email program. The prosecution has alleged that the technology for operating these sites and programs were obtained from a North Korean hacker that works for the North Korean governments Reunggrado Information Center and that part of the profits was shared by these individuals with the North Korean government or agents of the North Korean government. Reunggrado Information Center may have been

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Constitutional Court of Korea Declares Korean Dictator’s Martial Law Decrees Unconstitutional

The New York Times has an interesting article written by Pulitzer Prize winning columnist Choe Sang-Hun concerning the decision of the Constitutional Court of Korea in declaring unanimously three emergency decrees by the Park Chung-Hee Administration unconstitutional.  The full article may be found at: Court Says South Korean Dictator, Father of Current President, Violated Constitution. The Constitutional Court opened the case, which deals with what human rights groups have called one of the darkest periods in South Korea’s modern history, after six people filed a petition. They include a 72-year-old man named Oh Jong-sang, who was tortured and served three years in prison under the decrees. His crime was criticizing Mr. Park during a conversation with a high school girl on a bus in 1974. Mr. Park seized power in a military coup in 1961 and ruled until his assassination by his disgruntled spy chief in 1979. Public discontent peaked

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Korea’s President Lee to Pardon Cronies and “Too Big to Fail” Companies

Once upon a time, end-of-tenure presidential pardons served a useful purpose as reformers tried to correct past wrongs, such human rights violations, which were too politically problematic at those times. And in some cases involving foreigners, pardons could be used to flush jails of non-Korean miscreants to planes heading for their home countries. But over the past decade, this presidential prerogative has been misused to rescue political cronies and executives of “too big to fail” enterprises, without risking ensuing political blowback. While South Korea is better than most Asian countries in being a nation of laws, there is an understandable cynicism about the law held my most Koreans. The big fish have a way of getting undeserved leniency while the more common Korean can expect a greater brunt of the law if convicted. This is another example of what I’ve been recently labeling as the “Two-Tier Korea” consisting of the

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Sean Hayes in the Christian Science Monitor on Korean Adoptions

I was quoted in today’s issue of the Christian Science Monitor in an adoption law matter that we are assisting on, in a drastically reduced cost capacity, as part of what we believe are our pro bono obligations to Korean society. I fear that this adoption law case may reach all the way to the Korean Constitutional and Supreme courts. The case, I believe, is caused, simply, by misplaced nationalism.  I, also, hope for Korea to be able to adopt most of its children locally, but the reality is that the nation is still not at the stage where this is possible.  Maybe it will, not, ever be at a stage – most countries are not.  Koreans, overwhelming, do not want to adopt children – the number of local adoptions has not significantly increased over the past decade.  This should not be embarrassing – it is just a reality.  Hey –

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