Korean Inheritance Law

https://m.blog.naver.com/naverlaw/221129970731

[A friendly judge] You should not touch your inheritance if you want to be recognized as a waiver of inheritance.

The abandonment of inheritance requires the judgment of the family court.

When a person dies and the validity of the inheritance is initiated, the remaining heirs receive inheritance, which inherits the property status of the deceased person comprehensively. And in this case, succession of the heir includes debts as well as bonds of the dead person (the heirs). But the heirs of the heirs who have more debt than the bonds can get all the debts left behind and cause damage.

For this reason, the Civil Code has opened the way for the heirs to choose not to inherit all of their debts and debts with the system of “renunciation of inheritance”.

In this regard, the Supreme Court case (2013 D73520), which judges when the abandonment of inheritance occurs, is introduced.

Mr. A was an heir of Mr. B who died, but he did not like inheritance. Because Mr. B had more debts (liabilities) than property, he decided that if he inherited the status, he would be in a deficit.

When he learned how to avoid inheritance, he learned that he could not be inherited if he gave up his inheritance and reported abandonment of his inheritance to the court after a month of his death did. A few days later, Mr. A dismissed the six freight cars he had owned in his lifetime or sold them to others, earning a corresponding profit. Two months after the filing of the report, the court made a decision to reprimand A’s abandonment.

In this regard, it was a question of whether the disposition of Mr. A’s property was regarded as a simple approval.

Article 1026 (1) of the Civil Code stipulates that an act of disposing an inherited property by an heir shall be regarded as “simple approval”, ie, the heir has unconditionally accepted the succession of inherited property.

However, whether or not Mr. A’s conduct, which disposes of the inherited property prior to the court’s referee’s judgment after the declaration of abandonment of inheritance, becomes simple approval, depends on when the abandonment of inheritance takes effect. In other words, it is a question of whether to refer to the time when the abandonment of inheritance was given and when the abandonment of abandonment was given after the judgment of abduction was regarded as the reference point at which the inheritance abandonment effect occurred.

The Supreme Court found that the abandonment did not take effect only when it declared the abandonment of inheritance.

The court said, “After the abandonment of inheritance has become effective, there is no longer any room for simple approval.” Article 1026 (1) of the Civil Code should be applied only to the disposition of inherited property before the abandonment of inheritance takes effect “He said.

The judge said, “The abandonment of inheritance is not only effected by the declaration of the heir, but should be filed in the family court and be judged by the family court.” The judgment becomes effective when the party receives the notice. ” .

Therefore, even if the heir, A, declares abandonment of inheritance to the family court, if he disposes of the inheritance cargo before the judgment of the family court which hears the judgment, it shall be dismissed before the abandonment of inheritance takes effect It is deemed that the act is regarded as a simple grant of inheritance pursuant to Article 1026 (1) of the Civil Code.

As a result, Mr. A ‘s disposal of six freight cars has given Mr. B’ s property and debts a succession.

◇ Judicial TIP = There is a system called ‘limited approval’ in a similar concept to inheritance abandonment. A limited authorization is a declaration of intent (Civil Code Section 1028) that the heir will be liable only for the debts of the heirs and the reimbursement of bequests within the limits of the property received by inheritance. It is different from inheritance abandonment which abandons inheritance at all.

 

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A clandestine divorce?

https://m.blog.naver.com/naverlaw/221133499636

One day, suddenly, it would be absurd if you knew that you were legally divorced. What if a spouse who left for the United States sued for a divorce in the country and was divorced?

But do not worry. Even if the spouse unwittingly unilaterally filed a divorce case in the US, even if the local court divorced him, there is a precedent in Korea where the divorce is null and void.

A married couple who married in 1978 and married for 7 years. His spouse, Mr. B, left the United States for a job, and the ‘two houses’ started. In the sixth year since Mr. B went to the United States, Mr. B moved out of the United States and contacted Mr. A.

Mr. B filed a divorce suit against A in the US court the following year. Of course, he did not tell A, and instead acted like an American lawyer acting on behalf of Mr. A.

A did not know about the divorce proceedings, but also the proceedings, but the court decided that he had filed a lawsuit because he had a lawyer acting as a representative of Mr. A. In the end, Mr. A was sentenced to a divorce without attending the court once.

Mr. B received a divorce order from the US court and his divorce report at the Korean Consulate General in the United States. The consulate general again sent it to the relevant ward office in South Korea. The ward office, which received the documents, took their divorce to the family register and sent the family register to the consulate in the United States. Until the family register was cleared, Mr. A did not know his divorce.

In the end, A did not know anything, and after a year of losing contact with Mr. B, he was divorced. So, A filed a lawsuit against the divorce.

The court sentenced their divorce to be null and void. The court ruled that “this divorce has no effect in our country and the divorce under this judgment is invalid.” (Seoul Art Act 92 De 68848)

The court explained that the procedure required for the lawsuit was not carried out properly. “The court has not received any public notice or filed a recall or order or filed a lawsuit at the beginning of the lawsuit,” he said. “A divorce sentenced by a US court does not meet the requirements for litigation. It has no effect in our country. ”

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Civil Procedure Act
Article 217 (Approval of Foreign Trial)
(1) A decision of a foreign court or a trial in which the same effect is recognized (hereinafter referred to as a “determinate trial, etc.”) shall be approved under the following conditions.
1. International jurisdiction of the foreign court shall be recognized on the principle of international jurisdiction under the laws of the Republic of Korea or treaty
2. A defendant has been served (provided that the defendant has not been served or has received a written notice or an order of due date or defense equivalent thereto in a timely manner, Should have responded to
3. In the light of the content of the finalized trial and the proceedings, the approval of the final judgment shall not violate the goodwill and other social order of the Republic of Korea.
4. There shall be no substantial difference between the two countries in which there is a mutual guarantee or in the country to which the Republic of Korea and its foreign courts belong,
(2) The court shall ex officio examine whether the requirements of paragraph (1) are met.

Maternity Leave in South Korea

[Kind Lawyer] A pregnant female teacher who is taking childcare leave … Is maternity leave available to her?

The principal must grant maternity leave at the same time as a reinstatement order

Korea has established the ‘maternity leave’ system as a law for female government employees who are pregnant. This is intended to protect maternity for a certain period before and after childbirth, and guarantees the right of special leave for childbirth to the female teachers

In addition to maternity leave, there is also a system of “parental leave” for working mothers who are raising young children under certain age for maternity protection.

In this regard, there is a case in which the female teacher who is a public official went to the Supreme Court in collision with the school while seeking maternity leave during parental leave (2012du4852).

Married person A was working as an X middle school teacher. Mr. A received a parental leave request from March 1, 2009, to February 28, 2010, for parental leave for one year.

Then, during the paternity leave period, I became pregnant with my second child. On August 20, 2009, I asked the head of X middle school about the reinstatement to get maternity leave. It was because he could get maternity leave when he was working. However, the head teacher of X Junior High School replied, “It is impossible to reinstate.”

A received a rejection from the principal and a week later, he submitted a complaint to the principal stating that he had no reason to leave, but the principal also rejected his application for reinstatement, saying he was not eligible for early reinstatement.

In the end, Mr. A asked the principal to cancel the dismissal of the reinstatement.

In the trial process, it was pointed out whether the case where the civil servant is pregnant while taking parental leave is due to the absence of the reason for the leave, and the right of the proprietor should order the reinstatement without delay (Article 73, Clause 2 of the Public Officials Act).

The court held Mr. A’s hand.

The court noted that Article 44, Paragraph 1, Item 7 of the Education Civil Service Act stipulates that “children who are under the age of eight or under the second grade of elementary school” And the reason for the extinction of the reasons for parental leave is not only the case where the requirement for the parent is expired due to death of the child or attendance at the elementary school, “It is also important to consider whether or not there are any reasons why it is not necessary to take leave for childcare.”

If the reason for annulment of childcare leave falls under any of the above grounds, the court will explain that the right holder has to order a reinstatement pursuant to Article 73 (2) of the National Public Service Act.

According to this law, the second pregnancy of A is equipped with the maternity leave requirement of Article 20 (2) of the National Public Service Regulations. Therefore, when the reason given by the court is that ” .

The Court further noted that, in addition to the case where a female education officer who is taking childcare leave requests for reinstatement after completing a maternity leave requirement, the court has no reason to leave the job at the time of maternity leave even if the applicant applies for reinstatement before the maternity leave requirement. I saw that I had to give permission for maternity leave at the same time as reinstating my boss.

In this case, the court ordered the cancellation of the principal ‘s dismissal of reinstatement, and Mr. A was able to use maternity leave immediately after being reinstated.

◇ Judicial Tipping = Women’s education officers can apply for maternity leave separately from maternity leave because maternity leave and maternity leave are different from purpose and ground rules. However, since civil servants who are on leave can not engage in their duties (Article 73 (1) of the Act), and if a certain reason occurs on the premise that he / she is engaged in his / her duties, he / she shall not be allowed to take a leave of absence.

Therefore, in order for a female education officer who is on childcare leave to take maternity leave, her first reinstatement must be preceded. It is meaningless to take a vacation while on leave.

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[Labor News] Labor Unions Sue to Nullify Performance Pay

Recently the 52 unions of the financial companies and public institutions which introduced the new performance based pay scheme, will file a lawsuit to invalidate the scheme. The union leaders argue that the scheme is invalid because it was introduced without express consent of the unions. According to the union leaders, the companies adopted the performance pay scheme through “unilateral” board resolution which is in violation of South Korea’s Labor Standards Act. The unions hope to block the scheme by injunctions and ultimately nullify the scheme through the court judgment against the scheme.

Under the Labor Standards Act Article 94 (shown below), when a company modifies the employment bylaw, the company hear the opinion of the trade union of the company, and if there is no union, the majority of the worker’s opinions. When the change of the bylaw has an adverse effect on the workers, the company needs the workers’ consent on the change.

Article 94 (Procedures for Preparation and Amendment of Rules)
(1) An employer shall, with regard to the preparation or alteration of the rules of employment, hear the opinion of a trade union if there is such a trade union composed of the majority of the workers in the business or workplace concerned, or otherwise hear the opinion of the majority of the said workers if there is no trade union composed of the majority of the workers: Provided, That in case of amending the rules of employment unfavorably to workers, the employer shall obtain their consent thereto.
(2) When an employer reports the rules of employment pursuant to Article 93, he/she shall attach a document containing the opinion as referred to in paragraph (1).

The unions view the performance based pay scheme is one that adversely affects the workers, therefore the adoption of the new scheme must seek the workers’ consent. The government and the corporations disagree, however- they reason that performance based pay scheme is beneficial to and not detrimental to the workers in general and thus they do not need express consent of the workers. They argue that total wages paid to all workers do not decrease in any way and the scheme simply change the way the wages are distributed, giving more to the higher performing workers and less to those not performing well.

It is unclear how the Korean court will rule on this issue. What is certain is that the government is determined to inject more competition and shake up the corporate culture.

(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 contractors working at the U.S. military forces in Korea. Mr. Lippert told them that he was willing to review and discuss the Korean Workers Status of Forces Agreement (SOFA) labor provisions which have restricted the Three Basic Labor Rights, the Rights to organize, collective bargaining and collective action, which are enshrined by the Korean constitution. Mr. Lippert added that USFK respected the Korea Labor in the current SOFA to the fullest extent.

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 Jobs Are Entitled to Equal Pay

The Supreme Court of South Korea recently affirmed the lower court’s decision that the garbage truck operators and municipal street janitors are deemed workers in the same occupation and therefore they are entitled to an equal wage.

Mr. Kang, a garbage truck operator and the lead plaintiff, sued his employer, the municipal government, because his position, formerly classified as a street janitor, was reclassified as a newly created occupation called garbage truck operator. Before the reclassification, the plaintiff had received the wage that was agreed in the collective bargain agreement by the union of the street janitors. Once he lost the former status due to the reclassification, the wage was reduced. This led Mr. Kang to bring a lawsuit.

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

This is an important decision for the Korean workers who have long battled against the unequal pay and for their labor rights.

Source

[Labor News] OECD Chief Urges Labor Reform

For many workers in South Korea, South Korean labor market is already too liberal and cutthroat competitive. The resistance against so called performance based pay instead of the system based on seniority has been fierce in the recent years. The Korean government, which has been pushing labor reforms, is intent on making the Korean labor market more flexible. The labor unions representing the Korean workers see this as a veiled attempt to benefit the rich industrialists at the expense of the already disadvantaged Korean workers.

Recently Angel Gurría, Secretary-General of the Organization for Economic Cooperation and Development came to Korea and made a public statement that bolstered the case for labor reforms in Korea. He said, “For Korea to catch up with top economies of the world, Korea needs to ease labor regulations while relaxing the labor market.”

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

With its economy slowing and a low birthrate beginning to hurt the economic growth, the Korean government is justifiably worried about the status quo. The labor unions do not see it this way.

Source

[Civil Law] Tort Negligence under Korean Law

Let’s say Caleb Cruz, a professional yoga teacher from India, came to South Korea for a knee surgery from Dr. Kang, a world renown orthopedic surgeon. After Caleb was under a general anesthetic, Dr. Kang asked Dr. 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, Dr. Kang left the hospital for a 30-minute Crossfit session at Kalorie Low Fitness Club. The operation by Dr. Jung, despite his best effort, went horribly wrong and Caleb suffered permanent tissue damage in his knee. Caleb sued Dr. Kang for medical malpractice. How would the court rule?


To answer the question, we need to explore the concept of negligence under tort law and examine how the concept applies to this case at hand.

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 defined as “neglecting the duty owed under the average person’s standard” (79da1843). This so-called the average person in the society does not refer to a single, average person in the abstract sense- it is the average person for each specific, factual case at hand. (2000da12532).

Therefore, the standard of an average person for medical malpractice case would be different from that of a traffic accident case. 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 the medical services”(86daka1469).

In the hypothetical scenario above, the Korean court would probably look at an average doctor in the medical community in South Korea and make a determination of whether the actions by Doctors Jung and Kang were reasonable. The action taken by Dr. Kang was in violation of the professional responsibility as a medical doctor and the court would probably find a negligence in this 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 Dr. 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 Dr. 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.