Wednesday, June 19, 2019

On adoption



Recently, there have been several inquiries on adoption. I’d like to briefly explain the process of adoption. Basically, an adult may adopt another as his or her child according to Civil Act (hereafter referred to as the “Act”) and shall get consent or permission from the parents of the person to be adopted. In case there are certain reasons stated on the Act, the Family Court may decide on adoption without the parent’s consent or permission. The specific procedures depend on the age of the person to be adopted. The first paragraph of Article 867 of the Act prescribes, “(a)nyone who intends to adopt a minor shall obtain permission from the Family Court”. On the other hand, if the person to be adopted is an adult, no permission from Family Court is needed. If you want to have the person to be adopted end the relations with his or her parents and follow your family name, you shall file for full adoption to the Family Court. There are quite complicated requirements for both adoption and full adoption, so I’d advise you to consult a lawyer. For further inquiries, please feel free to contact me at yhwang618@gmail.com.

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Tuesday, June 18, 2019

On narcotic crimes






I’ve been sometimes asked about narcotic crimes from expats in Korea. South Korea is famous for its strict laws on narcotic crimes and there are several different provision on them from that in other countries. Above all, I’d like to point out that it is quite often misunderstood that only using narcotics shall be penalized. As well as use of narcotics, Narcotics Control Act (hereafter referred to as the “Act”) prohibits acts including cultivation of plants used as raw material for narcotic drugs and carrying, trading of it, and carrying, possessing, managing, importing, manufacturing, trading, assisting in trade of, giving or receiving, transporting, using, administering narcotics. Accordingly, based on the Act, the one may be penalized regardless of his or her using narcotic drugs if he or she possesses or carries or trades them. For further inquiries, please feel free to contact me at yhwang618@gmail.com.

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Tuesday, June 4, 2019

May employers change the time of employees’ paid leave?




For workers, paid leaves are the time to recharge themselves. Labor Standards Act (hereafter referred to as the “Act”) stipulates that employers shall grant paid leaves to employees. When are paid leaves given? It is when workers claim according to the Act. By the way, the Act also mentions that employers may change the time of the paid leave in case the paid leave greatly disrupts business. Please refer to “the fifth paragraph” of the Article of the Act as follows;

Article 60 (Annual Paid Leave)
(1)         Every employer shall grant any employee who has worked not less than 80 percent of one year a paid leave of 15 days. <Amended by Act No. 11270, Feb. 1, 2012>
(2)         Every employer shall grant any employee who has continuously worked for less than one year or who has worked less than 80 percentage of one year one paid-leave day for each month during which he/she has continuously worked. <Amended by Act No. 11270, Feb. 1, 2012>
(3)         Deleted. <by Act No. 15108, Nov. 28, 2017>
(4)         Every employer shall grant any employee who has continuously worked for not less than three years the paid-leave days that are calculated by adding one day for every two continuously working years not including the first one year to the 15 paid-leave days referred to in paragraph (1). In this case, the total number of paid-leave days, including the additional paid-leave days, shall not exceed 25 days.
(5)         Every employer shall grant the paid leave referred to in paragraphs (1) through (4) at the time when an employee files a claim therefor, and pay the employee an ordinary wage or an average wage during the period of paid leave as prescribed by the rules of employment, etc.: Provided, That in the event that granting the employee a paid leave at the time when such employee wants to take the paid leave greatly impedes the business operation, the relevant employer may change the time of the paid leave.  

Then, when is “the time when such employee wants to take the paid leave greatly impedes the business?” In other words, when may the employer change the time of the employee’s paid leave? Courts consider the tasks the employees take charge of, the workload other employees should handle on behalf of the employee, the possibility of putting in replacement, and the requests of paid leave by other employees judging that employ may change the time of leave. Latest court precedents suggest courts rarely accept that employers may change the time of the paid leave as the paid leave greatly impedes their business. If your employer demands you to change the time of paid leave after your request, you may claim that he or she shall prove the possibilities of the business being greatly impeded by your paid leave. For further inquiries, please feel free to contact me at yhwang618@gmail.com.


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Monday, May 27, 2019

New Articles of LSA to prevent harassment in workplaces will take effect!

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New Articles of 76-2 and 76-3 of Labor Standards Act (hereafter referred to as “LSA”) to prevent harassments in workplaces were established this January and they will be enforced on July 16, 2019. Article 76-2 prescribes that an employer or a worker shall not inflict physical and mental distress to other workers or deteriorate working environments abusing his or her position. According to Article 76-3, anybody who knows the damage may report it to the employer and the employer shall investigate the case. Also, the Article 76-3 mentions that the employer shall take appropriate measures to the wrongdoer and it prohibits the employer from taking unfavorable measures to the victim or the reporter. Under the amended first paragraph of the Article 109, an employer who unfairly treats the victim or the reporter of the harassment in workplaces shall be punished by imprisonment for not more than three years or by a fine of not exceeding 30 million won. I hope the new articles will help the number of the victims in workplaces to decrease. For further inquiries, please feel free to contact me at yhwang618@gmail.com.

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Tuesday, May 21, 2019

How to deal with sexual abuses

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This post will cover sex crimes and viable legal actions to the crimes. Above all, it is necessary to clarify each type of sex offenses including sexual harassment, indecent act by compulsion and rape. Most know what rape means but many are confused sexual harassment with indecent compulsion. Roughly stated, sexual harassment usually means offensive words to cause sexual humiliation and indecent act by compulsion a misconduct of physical sexual contact.       

Sexual harassment is not speculated as a crime under Korean law. Hence, there is no way to make the offender to be punished. The offender shall be punished under Article 311 Criminal Act, if he or she used insulting words and caused the victim to feel sexually humiliated. The victim of sexual harassment may file for civil suit claiming for the compensation for mental anguish. Additionally, the victim may report it with the supervisor if he or she is sexually harassed at his or her workplace and he or she may file for petition to Human Rights Commission.

As for indecent act by compulsion, two Acts may be applied; Criminal Act and Act on Special Cases Concerning the Punishment, etc, of Sexual Crimes. Please refer to the Articles as below;

Article 298 (Indecent Act by Compulsion) of Criminal Act
A person who, through violence or intimidation, commits an indecent act on another shall be punished by imprisonment for not more than ten years or by a fine not exceeding 15 million won. <Amended by Act No. 5057, Dec. 29, 1995>

Article 10 (Indecent Acts through Abuse of Occupational Authority, etc.) of Act on Special Cases Concerning the Punishment, etc, of Sexual Crimes

(1)         A person who, through fraudulent means or by a threat of force, commits an indecent act on another person who is under his/her guardianship or supervision by reason of his/her business, employment, or other relationship shall be punished by imprisonment for not more than two years or by a fine not exceeding five million won.
(2)         A person who commits an indecent act on another person held in his/her custody according to the provisions of any Act shall be punished by imprisonment for not more than three years or by a fine not exceeding fifteen million won.

As for rape, please see the following Article of Criminal Act and note that other Articles or of Act on Special Cases Concerning the Punishment, etc, of Sexual Crimes may be applied depending on the situations including the age of the victim, the way and the place of the crime.

Article 297 (Rape)
A person who, by means of violence or intimidation, has sexual intercourse with another shall be punished by imprisonment for a limited term of at least three years. <Amended by Act No. 11574, Dec. 18, 2012>

As you might assume, it is possible to file for civil suit for compensation for your physical and mental distress by indecent act by compulsion or rape. I wish I could be able to explain all the details of sexual abuses. For further inquiries, please feel free to contact me at yhwang618@gmail.com.

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Monday, May 20, 2019

The ABC of torts

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You may consider filing for civil suit claiming compensation if you are damaged by other’s tortious conduct. I’d like to mention what the basic requisites of torts in this post. Please refer to Article 750 of Civil Act as follows;
     
Article 750 (Definition of Torts) 
Any person who causes losses to or inflicts injuries on another person by an unlawful act, intentionally or negligently, shall be bound to make compensation for damages arising therefrom.

As read in the Article, the requirements of torts are (1) intentional and negligent acts, (2) illegality of the wrongdoing, (3) capacity for tort liability, (4) damage, and (5) causal relationship between the act and the damage

It is needed to note that for torts, the victim shall have burden of proof. There are several cases of shifting of burden of proof, which I’ll explain in the next post. Additionally, as for some cases including environmental pollution, and medical malpractice, a perpetrator’s negligence will be presumed in case a victim proves that he or she is damaged by the perpetrator’s wrongdoing.   
   
Basically, compensation for damage by torts shall be in money. Please refer to the relevant Articles of the Civil Act as follows;

Article 763 (Applicable Provisions to be Applied Mutatis Mutandis)
The provisions of Articles 393, 394, 396 and 399 shall apply mutatis mutandis to torts claims.

Article 394 (Method of Compensation for Damages)
Unless otherwise agreed by the parties, the damages shall be recovered in money. Based on the Supreme Court’s precedents, damages caused by torts are divided into three types, positive damage, negative damage and mental distress. Hence, courts decided whether each type of damage is reasonable for the victim respectively.

This post is to provide a big picture on torts based on the requisites of them, and I’ll offer the detailed information and advice on the next postings. For further inquiries, please feel free to contact me at yhwang618@gmail.com.

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Thursday, May 9, 2019

May the divorce claim raised by an at-fault spouse be granted in Korea?

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May the divorce claim raised by an at-fault spouse be granted in Korea. The answer is “No”, but it is possible to say that “there is an exception.” Korean Civil Act adopts that a fault-divorce system, and a divorce claim raised by party who has causes for breakdown of marriage shall not be granted. However, as the rate of divorce has risen and individualism has spread, the need to adopt the principle of no fault divorce has increased.

It is worthy of note that Supreme court made it clear again on September 15, 2015 that Korean legal system does not need to accept the no fault divorce principle (Please refer to the precedent of Supreme Court en banc Decision 2013Meu568 Decided September 15, 2015). The reasons why the court ruled that no fault divorce principle shall not be granted lie not in the feature of the Korean legal system but also in the cultural and socio-economic background.

First of all, most of the legal systems adopting no fault divorce principle do not allow divorce by agreement. However, Korean Civil Act adopts divorce by agreement as well as divorce by trial. According to Supreme Court, through the process of divorce by agreement, the spouse having fault for breakdown of marriage may divorce by persuading the other spouse. Considering the fact that there is a chance that a spouse having fault may divorce by agreement, there is no need to accept no fault divorce principle under the Korean legal system.        

Second, Supreme Court noticed that bigamy is not penalized based on Korean Criminal Act. There are several legal systems stipulating the penalty for bigamy, but Korean Criminal Act does not prescribe bigamy as a crime even though Korean Civil Act prohibits bigamy and states it as a cause of annulment of marriage. Under the Korean legal system not having an article to penalize bigamy, one whose spouse has extramarital relations is not likely to be perfectly protected.

Third, the situation that gender equality has not been fully realized was also considered by Supreme Court. One of the purposes of not granting no fault divorce was to protect women who were likely to be expelled by their husbands who practiced bigamy or had concubines so were likely to be at a loss over how to make ends meet. Compared with those in the past, social status and economic power of women has been enhanced, but women without any economic strength are still likely to be expelled by their husbands at fault. Therefore, Supreme Court decided that not fault divorce principle shall not be granted in Korea.

Although Supreme Court clarified that it was not necessary to take the principle of no fault divorce under Korean legal system, it stated that there was a room for granting divorce claim raised by a spouse at a fault as an exception. Supreme Court suggested under what circumstances divorce claim raised by a spouse having faults. According to the court, a divorce claim raised by a spouse having fault may be accepted in case it is meaningless to scrutinize the faults or liabilities as long time goes by, it is not likely that one spouse will be expelled by the other spouse at fault and the spouse at fault has fulfilled his/her duty as a parent to the children. In sum, a divorce claim by at-fault spouse may be granted in case no one is sacrificed when the claim is granted.

Since 1990s, the rate divorce has sharply risen and personal happiness has been emphasized. In this vein, it has been argued that no fault divorce shall be granted as marriage without love does not need to be continued for the sake of personal happiness. However, Korean Supreme Court does not seem to change their precedent not accepting no fault divorce at the moment. Nobody exactly expects how the legal system will change and whether the court will adopt the principle of no fault divorce, but please note that a spouse who tries to divorce after sacrificing the other spouse’s happiness will not be granted for nothing even under no fault divorce system.   
For further inquiries, please feel free to contact me at yhwang618@gmail.com.

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On adoption

Recently, there have been several inquiries on adoption. I’d like to briefly explain the process of adoption. Basically, an adult may ...