Unions Sue to Nullify Performance Pay

The 52 unions of the financial and public institutions, which voted to introduce the performance pay system without the consent of the union, will file a lawsuit to invalidate the system. The unions said that when the companies adopted the performance pay system through unilateral board resolution, they violated the Labor Standards Act which make them illegal. They unions added that they would seek injunctions and judgment on the legality of the introduction of the performance pay system.

Under the Labor Standards Act Article 94, when the company modifies the employment bylaw, the company must listen to the opinion of the company’s union, and if there is no union, the majority of the worker’s opinions. When the bylaw change affects the workers adversely, the company needs the workers’ consent.

The unions argue that performance based pay system affects the workers adversely, thus requiring workers’ consent before adoption. The government however thinks otherwise and arguing that the common sense tells that performance based pay system is beneficial and not detriment to the workers. In the government’s view, the total amount of wages paid do not decrease and the system only redistributes who gets more and less.

(Source)

[Civ Pro] South Korea is more Litigious than U.S.

One of the stereotypes of the U.S. is its highly litigious culture. In contrast, many people in both Asia or America expect countries like South Korea with the rich heritage in Confucianism and communal culture to differ, resorting to more traditional and harmonious ways to resolve legal disputes.

But the rapid westernization may have altered the Korean culture so much that it is becoming a world leader in civil lawsuit, even displacing the U.S.

 

stat

(Graph Source)

The recent statistics available (Source) says there was 4.44 million civil actions filed in the South Korean courts for Year 2015. Compare that with that for the U.S. which is 15 million civil actions in 2012. (Source) Since the U.S. has slightly more than 6 times more people than South Korea, U.S. should have 27 million civil cases if the Americans sued at the same rate as South Korea.

The contrast is even more stark compare to Japan which has similar culture as South Korea. In 2008, there were 2.3 million civil cases filed in Japan while there were 3.3 million civil cases in South Korea. Since Japan has 2.5 times more people, South Korea is nearly 3.5 times more litigious than Japan. The latest figure for South Korean civil cases is 4.4 so if Japan’s figure stayed constant, South Korea is probably 4 times more litigious than Japan.

This phenomenon of rapid growth of litigation has been ongoing for quite some time and has baffled some of the pundits in South Korea. One headline reads, “South Korea is right behind the U.S. for the title of the Republic of Lawsuits.” Another headline says “Koreans Go to Court for Trivial Matter.” In fact, a book published in 2000 warned that:

s

(Source)

[Labor Law] US Ambassador to Review SOFA Labor Rules

Mark Lippert, US Ambassador to South Korea met with the union leaders of the Korean workers at the U.S. military forces in South Korea and said that he was willing to review and discuss Korean Workers Status of Forces Agreement (SOFA) labor provisions which restrict the Three Basic Labor Rights guaranteed by Korean law. Lippert said “USFK respected as much as possible the Korea Labor in the current SOFA and saying it is willing to review and discuss”.

In SOFA Article 17 paragraph 3 (Source) states that:

 3. To the extent not inconsistent with the provisions of this Article or the military requirements of the United States armed forces, the conditions of employment, compensation, and labor-management relations established by the United States armed forces for their employees shall conform with provisions of labor legislation of the Republic of Korea.

This Agreement is further elaborated by the Agreed Minutes (Source)

3. It is understood that the term “military requirements,” used in paragraph 3 and Agreed Minutes 2 and 4, refers to such cases, wherein solutions are urgently needed for the United States armed forces to accomplish its military mission. The term covers such circumstances as war, a state of emergency equivalent to war, and situations that affect the ability of the United States armed forces to maintain a state of readiness to address such circumstances, such as mission changes and resource constraints imposed by U.S. law.

4. It is understood that the deviation from labor legislation of the Republic of Korea provided for in Agreed Minute 4 need not be referred to the Joint Committee in cases when such referral would seriously hamper military operations in an emergency.

The union leaders believe that this section gives the US military a blank check to ignore the Korean workers labor rights at will.

[Labor Law] Similar Positions Should Get Equal Pay

The Supreme Court of South Korea recently affirmed the lower court’s decision that the garbage truck operators and municipal street cleaners are workers in the same occupation and therefore the local government employing  them should be equal wage to each.

Mr. Kang, a garbage trucker operator, who is the lead plaintiff sued his employer, the municipal government because his position, formerly classified as a street cleaner, was reclassified as a newly created garbage trucker operator. Before reclassification, the plaintiffs had received the wage agreed in the collective bargain agreement by the street cleaner union.Once he lost the status, the wage was reduced and Mr. Kang sued.

The court sided with Mr. Kang, reasoning that the collective bargain agreement also applies to the other similar occupations in the same workplace if the majority of the workers of the single occupation is under the collective bargain agreement. Since garbage truck operators and street cleaners are sufficiently similar and nearly indistinguishable in their role, they are considered similar occupations.

Source

[Labor News] OECD Chief Urges Labor Reform

For many workers in South Korea, South Korea is already too liberalized and competitive. The resistance against so called performance based pay instead of the system of seniority based one has been fierced. The Korean government is pushing hard to make the labor market more flexible but the labor unions see this as an attempt to benefit the rich industrialists at the expense of the already desperate Korean workers.

Angel Gurria, secretary-general of the Organization for Economic Cooperation and Development came to Korea recently and made a comment to bolster the case for labor reform in Korea. He said, “For Korea to catch up with top economies, Korea needs to ease regulations to half of those of advanced economics while relaxing the labor market.”

The introduction of performance based pay system to the public sector, one which haslong been protected from the usual market force and competition, has met fierce opposition from the liberal politicians and union leaders. Some believe performance based salary may actually hurt the productivity rather than increasing it. Source

With its economy slowing and low birthrate beginning to hurt the growth, the Korean government is justifiedly worried but the leaders disagree on what is the best course of action for labor reform.

 

Source

[Con Law] Filibuster in Korean Style

One of the most memorable scenes of the American cinema is the filibuster scene in the classic Mr. Smith Goes to Washington. In the film, Mr. Smith makes a last stand against the corrupt Washington establishment by making endless speech in the Senate floor. His cause is to defend his reputation and fight the corrupt political machine set out to destroy him. As a Hollywood movie, he prevails at the end, quite dramatically indeed.

The South Koreans are big fans of Hollywood films and astute students of the American politics. The lawmakers in South Korean legislature a few years ago introduced filibuster as more “civilized” way for the minority party to block the bill pushed by the majority party.

Now for the first time in the recent years, the minority, opposition party is making an ambitious stand against so called “Anti-Terrorism” Act which allegedly curtails civil liberty in South Korea. The Korean media are abuzz with commentaries and news about the endless days of speeches. One positive from the filibustering is that the political in-fights have become less physical.

At least I see this as a sign of South Korea’s maturing democracy as people are more willing to engage in debates however long. I am not so sure that the other side is listening but at least there is no brawl and shouting and that’s a real progress.

[Civil Law] Game law

  1. Video games as goods or services

In the early days of the video gaming, the games were sold as a physical cartridge or disk. They were similar how people bought the LPs or video cassettes. Console games are still popular in the U.S and Europe and the consumers there still view video games as goods.

The situation differs in places such as China and South Korea where the online gaming dominates and the subscription-based, pay as you play system dominates. The gamers are often buying the services just as we buy the Internet or phone services. The view that video games are services is widely adopted as the game delivery system goes fully digital, i.e. Steam of Valve Corporation or Apple App Store or Google Play.

 

 

[Civil Law] Tort Negligence under Korean Law

Let’s say Caleb Cruz, a professional yoga teacher from India, came to Korea to receive a knee operation from Doctor Kang who was a world renown orthopedic surgeon. After Caleb was under a general anesthetic, Doctor Kang asked Doctor Jung, a young doctor who was fresh out of medical school and had no prior experience in knee operation, to perform the operation. While the operation was going on, Doctor Kang left the hospital for a 30-minute Crossfit session at Kalorie Low Fitness Club. The operation by Doctor Jung, despite his best effort, went horribly wrong and Caleb suffered tissue damage in his knee. Caleb sued Doctor Kang for medical malpractice. How would the court rule?

What Is Negligence?

When there is a tort action for negligence, the court looks at whether the defendant was negligent. Under Korean law, negligence is “neglecting the duty owed under the average person standard” under Korean law (79da1843). This so called “the average person in the society does not refer to a single, average person in the abstract- it is the average person for each specific case at hand”(2000da12532).

Therefore, the standard of an average person for a medical malpractice case is different from that of a traffic accident case for instance. In a medical malpractice case, the court would look at “whether the tortfeasor did not foresee the harmful outcome even though he or she could have foreseen, and whether he or she could have avoided that outcome,” and the negligence of the tortfeasor would be determined by looking at various factors such as the “average skill levels of the medical practice, the conditions and surrounding circumstances, and the unique characteristics of medical services”(86daka1469).

In the hypothetical scenario, the Korean court would look at the average doctor in the medical community in Korea and judge whether the actions by Doctors Jung and Kang were reasonable. The action by Doctor Kang pretty outrageous for a doctor and the court would probably find a negligence in that case.

Gross and Ordinary Negligence

Negligence could be classified into gross negligence and ordinary negligence. Gross negligence occurs if the due care was seriously lacking when it was compared against the standard of care ordinarily exercised by a person in the same job and profession”(86daka1448). Gross negligence that seriously lacks due care bordering on intentional tort. An example of gross negligence is that “the tortfeasor neglects the duty of care even though, without the ordinary standard of care expected from an average person, he or she could easily foresee by exercising minimal care.”(96da30113)

In our hypothetical case above, the court would likely to find a gross negligence. While Doctor Kang could assert that he did know he had the duty to stay in the operation room while Doctor Jung was doing his job, the court would not buy that argument. Under Korean law, even if the tortfeasor is owed a duty but had no awareness of that duty, he or she is still liable for the tort- mistake or lack of knowledge is no defense to breach of duty(2010da8709). Therefore, the court would probably impose a serious damage to Doctor Kang.

[Civ Pro] Choice of Court under Korean Civil Procedure

While driving his Hyundai through Gangnam District, Seoul, Psy was severely injured when he was hit by Danny’s car after it was bumped by a truck driven by Ben. Danny was a resident of Daejon and Ben was a resident of Busan. Psy filed a tort damage action against Danny and Ben as co-defendants. Assume that the proportion of negligence for Danny and Ben is 50% each.

Psy files a negligence action at Daegu District Court after making a choice-of-court agreement with Danny for the Daegu court. Is this proper? Does the choice of court agreement apply to Ben as well?

1. FORUM

(1) General Forum

Korean Rules of Civil Procedure (KRCP) Article 2 state that “(a) lawsuit is subject to the jurisdiction of a court at the place where a defendant’s general forum is located.” KRCP 3 defines general forum of a person as his or her domicile. Here, Daejon and Busan are the defendant’s place of residence and therefore their domiciles under the Rules. Thus, the plaintiff could properly bring an action at the general forum which are Daejon and Busan.

(2) Special Forum

In addition to general forum, a tort action may be brought at the place of an act under KRCP 18. Here, Seoul is where the car accident occurred and could also be the forum for the action.

2. CHOICE-OF-COURT AGREEMENT

(1) Jurisdiction by Agreement

KRCP 29 permits the parties in litigation to agree to a jurisdiction. Here, the plaintiff and defendant seem to have made a valid choice-of-court agreement to consent to the jurisdiction of the Daegu court.

(2) Removal

If the choice-of-court agreement is not validly made, the court could remove the case to the proper forum. Before doing so the court should wait until the defendant could answer to the pleading by the plaintiff because the defendant has an option to consent to the jurisdiction- KRCP 30 states that “a defendant pleads as to the merits of a case without putting in a demurrer against any lack of jurisdiction.”

If the defendant does raise lack of jurisdiction issue, the court should decide it and act accordingly. It is within the court’s discretion and not the right of the parties in litigation to remove the case under KRCP 34(2). The judge would consider the question of whether removal would cause significant delay and hardship to the parties before deciding removal.

(3) 3rd Party
A choice of court agreement does not bind the 3rd party and it would not affect the right of Ben- Ben could refuse the jurisdiction of Daegu even though his co-defendant Ben could not.

3. RELATED FORUM

In a lawsuit with several related claims, the jurisdiction over one of the claims could subject other related claim to the same jurisdiction even though the other claim, in itself, is not subject to that jurisdiction under KRCP 25(2). The court has interpreted “related” to mean to having an actual nexus. Here, the claim against Ben and Danny shares a common nucleus of operative facts and therefore related claims. By applying KRCP 25 Related Forum Rule, Ben could be subject to the jurisdiction of Daegu.

[Con Law] Comparing Korean, UK and US governments

If you are interested in South Korean politics, you’ll find a few differences  compare to the politics  of other countries.The Korean government in particular is an interesting mix of the western political thoughts and some local adaptation. In this post, I want to compare and contrast the Korean government with the two notable government systems in the West, those of the U.K. and U.S.

Put it simply, South Korea is a democratic republic with a presidential system with some elements of Westminster parliamentary system, having some elements of the English and American systems. For the most part, the Korean president is similar in role and power in comparison with the U.S. or French presidents. However, there are some differences and here are the few.

NO VICE PRESIDENT
The Korean president has a cabinet and a prime minister instead. There is so called vice-prime minister who is also the minister of economics. You also see the secretary of the Treasury and the chancellor of the Exchequer holding a prominent position among the ministers or secretaries in the U.S. and the U.K.

Back So in case the president is no longer capable of continuing his or her duty, the prime minister fills in. Unlike the vice president in the U.S. who’ll become the president, the prime minister subs in until a new president is elected in 60 days.

The Korean prime minister is not the same as those in the U.K., and Australia because in the English commonwealth countries, the prime minister is like the Korean president, the head of government. The Korean prime minister is more like the chief minister or chief-of-staff. In the current Korean politics, the prime ministers are often used as a scapegoat for unpopular policies or government failures. Having the PM somewhat insulates the president from the whim of the national politics.

Because South Korea no longer has a king or queen, the head of government is the head of the state. I sometimes wish we had a separate head of state from that of government as is in Japan, the U.K. and Germany. Interestingly, Germany has a president and nobody knows who he is- Chancellor Merkel does all the acts. So the Korean president has to play a “dual” role of an impartial head of state and a leader of his or her political party.

FIVE YEAR SINGLE TERM
Once elected, the Korean president does not have to worry about the reelection since he cannot run for another term. This limit is put in place after the people were fed up with the military dictators, one of whom was the father of the current Madam President Park.

OATH OF OFFICE
The Korean oath of office is as follows:
“I solemnly swear to execute the duty of the office of the president faithfully by following the Constitution and defend the country and doing my best for the peaceful reunification of the fatherland and furtherance of the people’s liberty and welfare as well as advancement of the national culture.”

Interestingly, the oath does say much about the the government policy goal. It is well within the president’s role to promote K-pop and the soap opera and talk with the North Korean regime for instance. There is no Bible or reference to the supernatural beings however.

GOVERNOR PLUS PRESIDENT
South Korea is a compact country with a highly centralized government so the president has more direct influence to the average citizens than the U.S. or Canadian head of government does. The country is in the process of delegating more power to the local governments but we are nowhere near the level of Scotland or U.S. states.

The Korean government also has some fondness for pushing (or forcing) policy agenda toward the people so what the president or the central government decides actually impact your day-to-day lives.

LASTLY
As is in most countries, you need to be a Korean citizen to vote for president. The presidents are elected directly by popular vote and people do not really vote for the party. So there are cases when a popular candidate lost in a party primary and still ran in the election. The personal image rather than the policy seems to be the deciding factor as least in the recent Korean elections.

As in most democracies, the Korean party loyalty is highly regional. The liberal is very strong in the Southwest while the conservative is strong in the Southeast. The Seoul area is equally divided and often a fierce battleground for the election. If you see a huge demonstration right in Seoul, you can easily understand why. The Blue House, the president’s residence, is located in the largest city in the country with plenty of people opposed to the president. (This is one reason why Louis the Fourteenth of France built Versailles outside Paris to stay away from the angry mob.)

In my opinion, I think Yuna Kim has a good shot at becoming a president if she gains some experience and gets a party backing. She is by far the most famous and recognizable person here and she has plenty of cash to boot.
The same is true with Chanho Park, formerly Major League player and Jisung Park of Manchester United but I think Yuna Kim would get greater female support and she has more refined or stately images compare to the the two players.