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
Continue readingCategory: Korean Constitutional Law
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
Continue readingShould 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
Continue readingKorea’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
Continue readingVisa 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
Continue readingCensorship 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,
Continue readingSouth 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
Continue readingConstitutional 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,
Continue readingKorea’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
Continue readingSean 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
Continue readingConstitutional 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
Continue readingThe 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
Continue readingProstitution 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
Continue readingOpposition 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
Continue readingConstitutional 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
Continue readingTop 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
Continue readingFinally 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
Continue readingConstitutional 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
Continue readingThere 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.
Continue readingFines 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
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