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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Constitutional Court of Korea Declares Real Name Verification Unconstitutional

The Korean Constitutional Court, late last year, declared the real name identification verification requirement in the Act on the Promotion of Information and Telecommunications Network Use and Protection of Information that required some providers of Internet services with forums, bulletin boards and the like to confirm the identity of all users prior to the user being allowed to post comments on the site unconstitutional. The Act specifically required any company or individual who operated any type of website with over 100,000 visitors per day, on average, that allowed users to create content, to confirm the identity of the person prior to allowing them to post content on the site. Over 130 sites were required to obtain confirmation of the identity of users intending to post comments. The Constitutional Court ruled, in part, that the confirmation of identity requirement is unconstitutional since: 1.  Other less restrictive means are available to identify

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The North Korean Children Welfare Act of 2012 Signed into Law in the States

The U.S. president has signed the North Korean Child Welfare Act into Law. The bill, in short, urges the U.S. Secretary of State to protect North Korean children in nations outside of North Korea. The bills were passed by Congress with a unanimous vote of each chamber. Numerous orphaned North Korean children are living in China in less than adequate conditions. Many of the parents of these children have been repatriated back to North Korean from China by force. The Act specifically notes that the Secretary of State must “brief appropriate congressional committees on efforts to advocate for and develop a strategy to provide assistance in the best interest of these children.” South Korea has been unable to pass like human rights bills in the Korean National Assembly because of vocal opposition from liberals. ________ Sean Hayes may be contacted at: [email protected] Sean Hayes is co-chair of the Korea Practice

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Prostitution at the Korean Constitutional Court

The petition of a 41-year-old alleged prostitute to forward a case on the constitutionality of punishing a prostitute for exchanging sexual favors for money has been accepted by a judge at the Seoul Northern District Court. The Korea Times has reported, in part, that: She was accused of having sex with a man in his 20s at a brothel in Seoul in July. The district court clarified that the judge’s request doesn’t question the part of the law that punishes buyers of sex.“We don’t punish a woman acting as a concubine or a wife for hire,” Oh said. “In this regard, the law could violate people’s basic rights.”Oh also questioned the effectiveness of the law, saying authorities should focus on punishing brothel owners and pimps exploiting prostitutes.Under the law, both buyers and sellers of sex face one year in prison or a 3 million won ($2,830) fine, except for those

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Opposition to Justice Lee Dong-Hup to lead the Constitutional Court is Ridiculous Liberal Hogwash

Opposition to Justice Lee Dong-Hup is nothing more than the typical nonsense that plaques Korean politics.   Justice Lee has been nominated as the Chief Justice of the Constitutional Court and the ultra-liberal and liberal parties are, seemingly, opposed to the nomination, since the justice is from the same home town as the incoming president.  I think this fact has nothing to do with it and, simply, these parties will oppose any nominee. I have come to know Justice Lee very well.  I had the opportunity to lead a group of justices at the Constitutional Court in the study of American Constitutional Law and, also, advise justices on pending cases at the Constitutional Court during by tenure at the Court.  I led the group of justices studying Constitutional Law for many years and Justice Lee was the only justice that attended almost every meeting.  He was, also, very much interested in

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Constitutional Crisis in the Making in Korea

The following article appeared in the Korea Times on March 2, 2012. Because of a critical flaw in the Korean Constitution, the National Assembly’s nine-month delay in nominating a justice to a vacant seat may cause an irreparable constitutional crisis. This crisis has the potential to lead to the destruction of the power of the Constitutional Court and, thus, the destruction of a critical check on the National Assembly, president and the ordinary courts. The Constitutional Court has been fiercely criticized by politicians, on both sides of the aisle, for being involved in questions that are inherently political in nature. During my six years working at the Court I was vocal in my opposition to this, obvious, tendency of the Court’s justices and researchers. These political tendencies are fostered by the Court because of a lack of consistently applied legal tests. This is caused by the lack of experience in

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Top Ten Mistakes of Companies Doing Business in Korea

Our law firm has been dealing in Korea with foreign clients doing business in Korea of all shapes and sizes.  Surprisingly, we see many of the same issues from our multinational clients that we see from our SME clients, thus, we drafted this post.   TOP TEN ERRORS OF COMPANIES IN THE KOREA MARKET Lack of market research.  Selling in China, Japan, Malyasia, Singapore etc. is vastly different than selling in Korea.  Get a good local market research study concluded by a local market research company.  No Due Diligence or Poor Due Diligence.  Read my posts on this issue. Listen to my Mother: JVs in ASIA;  Doing Business in Asia: Due Diligence, Agreements, Attorneys and Street Smarts. Register your trademarks.  Your international filing is not adequate protection in Korea. Read my post on the issue at: Don’t Just Trust Us: Trademarks in Korea Draft Korea-tailored contracts.  Your international joint venture,

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Finally All Criminal Cases to Be Disclosed to Public in Korea

The Korea Times has reported that all court rulings in criminal cases, starting next year, will be disclosed to the pubic in writing.  Civil cases will, all, be reported starting in 2015.  The Korea Times notes that: All courts here, including the appellate and highest courts, will be obliged to provide access for citizens to the texts of their rulings in all criminal cases via online or offline, the top court said, noting the system will be expanded to civil cases from 2015. So far, the Supreme Court makes public the verdicts of “major cases” online on a case-by-case basis, and those who want to have details of a case need to make a separate request, causing inconvenience to the public and controversy over rulings’ transparency and the public rights to know. The highest court said it will devise relevant rules within the year for the official launch of the

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Constitutional Court of Korea Declares Internet Real-Name Online Identification System Unconstitutional

The Korean Constitutional Court, unanimously, declared Clause 5 of Article 44 of the Act on the Promotion of Information and Communication Network Utilization and Protection implemented in 2007 unconstitutional in late August of this year.  This Korean law was passed in reaction to suicides of Korean celebrities.  These celebrities were criticized online for various improprieties and alleged improprieties.  The law required, on certain websites, the logging into the website with one’s national identification number, thus, limiting the ability to speak anonymously. Numerous Constitutional Law scholars and free speech advocates emphatically argued that the law was nothing more than an attempt to stifle political speech.  Since, naturally, posters would fear the wrath of the government if criticism was levied against the government or heads of Korean corporations. The Constitutional Court, in striking down the law, noted that: “Restriction on freedom of expression can be justified only when it is clear that

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There Goes the Neighborhood: Samsung “Union” Allowed to Protest in Front Of Samsung Headquarters

The Korea Times has reported that the Administrative Court in Seoul has overturned the decision of the Seoul Metropolitan Police Force to disallow a rally in front of Samsung headquarters.  The rally was to honor the memory of a Samsung Electronics employee who died of leukemia.  Samsung has been accused of using chemicals in their manufacturing processes that are harmful to the health of workers.  Some have claimed that these specific chemicals are not being used in other developed nations. Samsung and other large conglomerates are beginning to be treated equally by the government to other companies because of, inter alia, the realization that Samsung and other companies have abused their position to the detriment of the population.  Additionally, politicians are increasingly realizing that Korea future growth will likely come from SMEs and not large family-controlled conglomerates.  The Korea Times quoting Yonhap news reported that: The Seoul Administrative Court accepted

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Fines by the Korea Fair Trade Commission Increases for Abuse of Market Position and Unfair Trade Practices in Korea

The Fair Trade Commission of Korea has implemented substantial amendments to its guidelines for imposing fines on companies doing business in Korea.  The Amendments were detailed in a document the Fair Trade Commission of Korea calls the “Amendment Notice.”  This Amendment Notice comes into effect on April 1 of 2012. The Amendment Notice will likely increase the fines imposed by the Fair Trade Commission.   Prior to the Amendment Notice violations of the Monopoly Regulation and Fair Trade Act would result in lower fines than that authorized by Korean Monopoly Law.  The change will, likely, substantially increase the fines. INCREASE IN FINES FOR UNFAIR TRADE PRACTICE AND ABUSE OF DOMINANCE IN MARKET The Amendment Notice will likely increase fines for Abuse of a Companies Dominant Market Position in Korea from 2 % to 3% of revenues earned because of the violation.  Additionally,the fine will be increased from 1% to 2% of

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Return of Fraudulently Obtained Subsidies by Employer in Korea

The Seoul Administrative Court ruled, late in 2011, that the provision of the Enforcement Decree of the Employment Insurance Act (article 56(2)) requiring the return by an employer to the Korean government of all fraudulently obtained vocational training funds (and other like funds) collected by the Korean employer was unconstitutional (2011 gu-hap 14852).  The law required, in most cases, the return of all vocational training funds received if any funds were received fraudulently. The holding of the Administrative Court of Korea noted that the ““Article 56(2) of the Enforcement Decree of the Employment Insurance Act, before amendment, has failed to properly apply to the matter the concepts of “minimal intrusion” and “balance of legal interests,”” violating the Constitution because it unduly infringes the ‟property rights” of companies obtaining fraudulent funds. If your company has been required to return subsidies for any reasons, please contact an attorney immediately.   You may be

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Not So Free Speech over the Internet in Korea?

Evan Ramstad and R. Jai Krishna wrote a good piece for the Wall Street Journal on the freedom of speech in Korea and India. Korea has, again, begun to stricly enforce its online censorship laws. Some academics are questiong the tactics of the government: “Whoever has posted the illegal information can be held responsible that way,” said Mr. Park, who is a law professor at Korea University in Seoul. “The commission’s answer to shut down or erase the illegal information is virtually impossible to enforce in a constitutional manner.” South Korea’s 1987 constitution guarantees free speech. Even so, the government has created a welter of limits on expression, particularly on political and security topics. South Korea also allows people to be criminally punished for defamation and the country is one of just a few, including Japan, where truth is not allowed as a defense against libel. Over the past decade, that

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Protecting the Right to Free Speech? MBC’s PD Notebook on Trial

An interesting case has worked its way through the courts on free speech in Korea.  As we all have become aware, not one human case of mad cow disease has been linked to the consumption of U.S. beef.  With the Lee Myung-Bak Administration reassurance that Mad Cow disease would not affect citizens, the Administration decided in 2008 to resume the import of U.S. beef with strict restrictions. MBC’s “PD Notebook” emphatically asserted that U.S. beef poses a risk to the Korean population.  The argument was backed up by numerous mistranslations of U.S. data and information that was later found to be false or misleading by other news sources, the prosecution, and the courts. The program was credited for fueling a 2 million-person demonstration in the capital. The march, on many occasions, turned violent. Many demonstrators were schoolchildren brought to the demonstration by their teachers, college students that were organized by professors and even

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