English-Speaking Arbitration Attorneys in Korea

International arbitration between Korean companies and American, Australian, British, Chinese, Indian, German and other nation companies is on the increase.  Regrettably, few Korean attorneys are capable of handling international arbitration cases in the English language, because of the lack of experience in complex international arbitration and the lack of adequate English language skills.  The reality is Korea has few English-speaking arbitration attorneys capable of handling complex international arbitration matters, thus, many firms have turned to foreign attorneys to fill this glaring gap.   Sean Hayes is the author of the he Korean Law Blog .  English-speaking Korean attorneys contribute to this blog.  Sean Hayes, his retired Korean judge partner, a senior associate and other international attorneys for IPG are engaged in international arbitration at the Korean Commercial Arbitration Board and other international arbitration board for multinational companies for cases against Korean companies.   Clients engaged us for construction, manufacturing, joint venture and

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Korean Government Official Prosecuted in U.S. for Violation of Korean Law? Application of Korean Law in U.S. Courts

Is it really true?  A foreign government official may be prosecuted in the United States for the violation of a non-U.S. law – Yes/No – not exactly. A Korean working for a Korean government research center was, recently, found guilt of U.S. federal money laundering in a U.S. Federal Court.  The individual was convicted of utilizing the banking system of the United States to store and transfer illegal obtained funds.  The funds were deemed illegally obtained under Korean Law.  So yes, the interpretation of Korean Law was necessary. According to a Press Release by the Central District of California’s U.S. Attorney’s Office: “A former director of South Korea’s Earthquake Research Center at the Korea Institute of Geoscience and Mineral Resources (KIGAM) has been found guilty of using a Southern California bank account to launder bribes he received from two seismological companies, including one based in Pasadena. Heon-Cheol Chi, 59, of

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Korean Product Liability Act Amended to Include Punitive Damages & a Relaxed Burden of Proof

The Amended Product Liability Act of Korea was published in April of 2017.  This Korean Product Liability Act shall be promulgated in April of 2018.   The major amendments to the Act are: Allows Judges to Award Punitive Damages; and  Lowers the Burden of Proof. Punitive Damages in Product Liability Cases in Korea The present Korean Product Liability Law limits damage to the actual damages incurred, thus, not allowing a judge to award punitive damages. This reality has led to few product liability cases being prosecuted by consumers, because of the conservative calculation of “actual damages” in Korea and, thus, a belief suing, in Korea, large manufacturers leads to nothing but a legal bill and a small damage award. The Amended Korea Product Liability Law, however, allows a judge to grant punitive damages if: (a) the manufacturer of the product in question had knowledge of the defect; (b) the manufacture

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Getting a Divorce in Korea: Hire an English-Speaking Korean Divorce Lawyer?

The following Korean divorce information is provided by the Seoul Global Center.  Non-Koreans are capable of obtaining a divorce in Korea even if no party to the divorce is a Korean national.  In most cases you will be required to hire a proactive English-speaking Korean Divorce Lawyer. However, in many divorce cases, no divorce attorney in Korea will be needed.  However, in most cases involving non-Koreans, it is advisable to seek assistance from a divorce lawyer in Korea, because of the need, often, for among other things, a detailed marital separation agreement prior to divorce, language issues and the inability of the parties to resolve all matters in an amicable manner. I n all but the most contentious of divorce actions, the legal fees will not be a great burden. The following is a clip of the advice noted by the Seoul Global Center on the Seoul Global Center Blog. 

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Establishing Business with Korea via an Agent: Korean Agency Law Basics

For some companies wishing to establish business with Korea, the use of a commercial agency relationship may be an ideal way to establish your business presence in Korea. An agent relationship is often ideal when a company seeks to sell its products in Korea, but wishes to first evaluate and familiarize itself with the Korean market prior to establishing a distributorship relationship or establishing a legal presence in Korea via a subsidiary. In Korea, there is no one piece of enacted legislation dedicated solely to agency law.  Rather, provisions pertaining to agency are found interspersed in various pieces of legislation, mostly within the Korean Commercial Code (“KCC”) (also known as the Korean Commercial Act) and Civil Act (often referred to as the Civil Code). The Korean Commercial Code sets out certain provisions that apply to the relationship between a commercial agent and principal. The KCC defines a “commercial agent” as

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Entering 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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Non-Registered Company Director (Executive Director/Senior Managerial Worker) in Korea deemed Employee under Korean Labor & Employment Law

Article 27 of the Labor Standards Act of Korea stipulates that all “employees” must be notified in writing of the reason for dismissal.  In most cases, 30-days notice or 30-days pay in lieu of notification is required.  Employees may, also, only, be terminated for “fault attributable to the employee” or “urgent managerial necessity.”  The burden is on the employer to prove “justifiable grounds for termination.”  All good proactive employment lawyers in Korea have detailed programs in place that assist in justifying termination.  However,  sadly, it is very difficult to find good proactive employment lawyers in Korea. Directors are, typically, not deemed “employees” under Korean Law.  However, exceptions exist.  We wrote an article on these exceptions at: Factors in Determining if a Worker is an “Employee” under the Korean Labor Standards Act of Korea. A recent cases filed against TongYang by an unregistered “director” sheds light on the risks associated with terminating

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Director Liability Insurance in Korea: Follow the Oxy Reckitt Beckiser

A great lawyer is hard to find – a lawyer is too hard to lose. The best lawyers, in Korea, often don’t work for the ubiquitous/”leading” law firms, because of Korean realities.  This is known by many Koreans and it is why Koreans shop around for the best lawyer for the specific case. Too often, we see foreign defendants in criminal cases that choose to maintain the same “corporate” firm for criminal matters.  This is not always the best move and we can see in many of the most noteworthy cases that this is not, always, the rule.  Realize that you are hiring a lawyer – not a law firm. Also, realize that a proactive, non-conflicted, aggressive and respected lawyer is essential for all criminal defense matters.  These lawyers are hard to find in Korea, especially when we consider that these lawyers, typically, need to be very senior retired judges

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Enforcement of Sales Promotions by Franchisors under Korean Franchise Law

Can an international franchisor force a local Korean franchise to cut the prices of a product via a sales event? This issue was addressed by the Korean Supreme Court in 2003Du7484.  In this Supreme Court of Korea case, a franchisor, among other things, mandated via the franchise agreement for a franchisee to hold sales events.  The franchise agreement did not specify the specific details of the sales events. The franchisor elected to utilize the clause in the franchise agreement to force the franchisee to initiate a sales event – the franchisee refused and, thus, the commencement of the dispute. The Supreme Court opined that: “A franchise business means a continuous business relationship in which a franchisor allows franchisees to use its own trademarks, service marks, trade names, signs, or any other business marks in selling goods (including raw materials and auxiliary materials) or services in conformity with certain quality standards

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Waivers of Liability in Korea: Civil Liability Basics

Waivers of liability, in Korea, are often deemed invalid by courts when the actions of the business is considered negligent by the Korean court.  Thus, the signing of a waiver does not, often, preclude the ability to sue or be sued. However, it is still advisable for a company operating in a business that is inherently dangerous to have liability waivers in contracts with their customers (e.g. scuba, paragliding, and skiing). In most cases, the courts will deem the waiver to be limited to injuries caused, directly and soley, by the actions of the injured plaintiff. Thus, for example, if you are skiing and you hit a tree that you claim was negligently placed too near to the exit of a ski lift, you likely, will lose the case, since the injury was caused by your actions of skiing into the lift.  This assumes that the lift or tree was

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Legal & Accounting Assistance for Startups in Korea

My law firm is, regrettably, not known for assisting SMEs and startups, because of our representation of your lawyers working with some well known multi-national companies. However, we do have a number of forward-thinking startups and SMEs that we assist in Korea and in China.  We love working with these companies, since we love being an active part in developing systems within businesses that allows growth with less of the compliance risks. We, also, love being a part of the business of companies.  Many of our attorneys and business professionals have experience with managing companies and assisting companies to find new opportunities and we love to see this experience help our clients succeed. For example, we work with: A 50 employee American online advertising agency; A startup British cyber-security company; A startup American mobile technology company; A startup Chinese entertainment company; A 15 employee American-owned grocery store; A 5 employee

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The Law of Self-Defense in Korea: Criminal Law Basics in Korea

The affirmative defense of self-defense is available in Korea.  A court, in Korea, that rules that an act was perpetrated in self-defense must dismiss or mitigate the punishment of the defendant. Typical Korean Court Criminal Act Article 21 (Self-Defense)(1) An act which is performed in order to prevent impending and unjust infringement of one’s own or another person’s legal interest shall not be punishable if there are reasonable grounds for that act. (2) When a preventive act has exceed normal limits, the punishment may be mitigated or remitted according to the extenuating circumstances. (3) In the case of the preceding paragraph, an act performed through fear, surprise, excitement, or confusion in the night or under other extraordinary circumstances shall not be punishable.  Regrettably to many, Korea interprets the preceding Article 21 of Korea’s Criminal Act very narrowly.  There is, only, one reported cases in the past 25 plus years where

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Execution/Enforcement of American, European & other Nation Court Judgments in Korean Courts

Question:  I have a final judgment against a Korean individual from a New York state court.  How can I enforce this judgment in Korea against this Korean individual? Korean Central District Court. Answer: A foreign judgment, in Korea, can be executed based on meeting the requirements of the Civil Execution Act of Korea and Civil Procedure Act of Korea.  The relevant provision are Article 26 and Article 27 of the Korean Civil Execution Act and Article 217 of the Korean Civil Act.  If you interested in enforcing a Korean judgment abroad, please view our sister blog at: Enforcing a Foreign Judgment in a New York Courts. The process of recognition and enforcement of a foreign judgment, often, is complicated, because of the need for translations of foreign judgments, the different style of foreign judgments and the, often, lack of familiarity of these foreign enforcement actions by Korean courts. The action

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Enforceability of Korean Executed Holographic/Handwritten Wills in Korea

Holographic wills are enforceable in Korea under Article 1066 of the Civil Act of Korea.  Our law firm is, presently, handling a matter concerning the estate of a decadent where the decadent executed a handwritten (holographic) will and the inheritors are Korean and foreign nationals. Holographic Wills This is a common issue for lawyers at our firm to handle – with the exception of the handwritten will issue. We, rarely, see cases, these days, of a testator that has executed a handwritten will.  This, however, was not so rare in the not so distant past. We, highly, recommend not utilizing a handwritten will and having a will formally drafted and executed.  However, in some cases where a testator is near death it may be advisable to execute a handwritten will quickly and, also, quickly, contact an attorney to get a formal will drafted and executed. Article 1066 of the Civil

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Starting a Business in South Korea: Top Posts from the Korean Law Blog

We write many posts on the Korean Law Blog on entering the Korean market.  However, the list is getting so large that many people have requested that we make a list of the posts that we feel are the most useful for those entering the Korean Market.  Thus, here we go.  More posts will be added to this list as they are written: Selling to Korea via Distributors, Agents & other Non-Direct Sales Channels Joint Venture/Partnerships in South Korea Test the Korean Waters and Then Hit China Protecting your Intellectual Property in Korea Korean Outsourcing: Legal Basics Tax Qualified Mergers in Korea Due Diligence in Korea New Corporate Forms in Korea Korean Labor Law Checklist for Employers The Ten Commandments of Labor Relations in Asia Please, also, take a look at the labels to the right, please search via the search box to the left and, also, click through to

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Korean IP Infringement Jurisdiction Centralized at Five Korean District Courts and the Patent Court of Korea: Korean Intellectual Property Case Updates

Patent Infringement Case Jurisdiction in Korea This month, the Korean National Assembly passed amendments to both the Korean Court Organization Act and the Civil Procedure Act to, inter alia, give exclusive jurisdiction, in Intellectual Property infringement matters, to five major district courts in Korea with an appeal from these five district courts going, now, to the Patent Court. At present, an IP infringement cases may be brought at any district court with an appeal to a high court.  Appeals of IP Tribunal Cases were, only, allowed to the Patent Court. These amendments shall be effective in any district court cases filed after December 31, 2015. We expect to see this jurisdictional change to allow cases to progress in a more efficient matter, allow judges increased opportunities to specialize and lead to more consistency in the application of law. Other articles that may be of interest: Korean Business/Service Marks Protection under

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Mr. Song Sings a Sobering Song of Freedom: “Emergency Situation” as a Defense to Drunk Driving Charge in Korea Upheld

I usually don’t write about such mundane legal issues, but the facts here are too interesting.  Mr. Song called a Designated Driver Service to drive him home after a night of drinking with high school friends. In Korea, you can call a Designated Driver to drive you home. The drivers, typically, arrive via public transportation or are dropped off via a motorbike.  The job is considered one of the lower-level jobs in Korea.  The fee for the service is, similar to the fee for a taxi. The Designated Driver and Mr. Song got into a verbal altercation that led to Mr. Song ordering the Designated Driver out of the car.  The altercation was over Mr. Song wanting the driver to drop off a friend on the way to his house – the Designated Driver refused and noted he will not drive further if Song demands that the friend is dropped

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Enforcement of Covenants Not to Compete in Employment Agreements in Korea: Restrictive Covenants in Korea

It is getting easier for an employer to enforce non-compete restrictive covenants in employment agreements in Korea, because of recent judgments by lower Korean courts noting, among other things, the value of trade secrets in competitive industries in Korea. Korean Non-Compete Agreements Recently, a interesting case, in a Seoul, Korean court, concerning the wedding planning business was handed down by the Seoul Central District Court (2104NA63529).  The Court upheld a three non-compete clause against an employee, but reduced a liquidated damage clause from KRW 1,000,000 per day to KRW 100,000 per day. The relevant restrictive covenant noted that: “the Employee shall not work at another company in the same field for three years after termination of employment and the Employee shall pay indemnification of KRW 1,000,000 per day if this Agreement is breached by the Employee.”  The business of the company was the wedding planning business.  The business is very

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Definition of Rape in Korea Elaborated on by the Korean Supreme Court: Criminal Law Basics

A recent decision by the Supreme Court of Korea may make defending against rape charges a little easier for defendants. The Defendant in the case was convicted by a Korean District and High Court for rape and was sentenced to 1 1/2 years in jail. Facts Found by the CourtThe Supreme Court found, among other things, the following facts: Defendant was the ex-boyfriend of the Accuser; The Accuser had a boyfriend; The Accuser was drunk and the Defendant may have been drunk at the night of the alleged rape; The Accuser and the Defendant met each other “spontaneously” and drank together; The Accuser and the Defendant went back to a motel room together; The Accuser and the Defendant had sex; The Accuser screamed that “this is rape” and the Defendant stopped having sex with the Accuser; The Defendant noted that he would take the Accuser to her home, but she

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Korean Intellectual Property Protection Strategies in Korea: Trademark Law Korea

The ABA Section of Intellectual Property Law Landslide Magazine (May/June 2015) has an excellent article entitled: Trademark Tips: Seven Experts Share Their Secrets. Ashly Boeshe wrote a great comment that is essential for protecting your IP in Asia.  Ashly notes, in part, that: “Trademark owners should take a global perspective when protecting their brands.  Whether advertising their products or services online or manufacturing products in a foreign country, trademark owners should not only consider seeking trademark protection in their key markets, but also in countries where infringement runs rampant and relief may be difficult to come by. Unlike the United States where trademark rights are obtained through use, several other major economic markets are civil code or “first to file” countries.  In these jurisdictions, trademark rights do not commence with use, but rather are granted to the first person or entity to file a trademark application or obtain a trademark

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