Monday, February 12, 2018

Useful information on divorce under Korean Judicial system (attached links)

 
I attach links prividing information on divorce under Korean judicial system. You may grasp a general idea on how the process on divoce goes in Korea.
* Divorce through a trial
* Uncontested divorce (divorce by mutual agreement)

Monday, February 5, 2018

A short video on international divorce in Korea










I briefly explained international divorce in English.

I hope that it would be helpful for you to understand international divorce in Korea. 
If you have any further inquiries, please send me an email (yhwang618@gmail.com). My office is located near Seoul District Court and Gyodae station in Seoul. 




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Korean Labor Standards Act (4)

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This is the fourth and the last posting on Korean Labor Standards Act (hereafter referred to as “the Act”). In this posting, let’s focus on how to deal with the situation in case you are not paid wages or severance or other valuables for your labor by your employer. Getting well paid for your labor must be the most important issue for an employee. I’d like to share knowledge on how to get well paid for your labor.


First, you cannot be too careful to look into your labor contract when you make it. An employee might be disadvantaged if clauses on wages or severance of the labor contract are tricky. Therefore, you need to closely examine how much the wage, incentives and severance are and how they are calculated. Please refer to the Article 17 of the Act when you sign a labor contract as follows;

Article 17 (Clear Statement of Terms and Conditions of Employment)

(1)  An employer shall state the following matters clearly. The same shall also apply to any alteration of the following matters after entering into a labor contract.

1.  Wages;

2.  Contractual work hours;

3.  Holidays under Article 55;

4.  Annual paid leaves under Article 60;

5.  Other terms and conditions prescribed by Presidential Decree.

(2)  An employer shall deliver the written statement specifying constituent items, calculation methods and payment methods of wages with respect to the wages under paragraph (1) 1 and the matters prescribed in subparagraphs 2 through 4 to workers: Provided, That where the matters under the main sentence is modified due to reasons prescribed by Presidential Decree, such as changes, etc. of collective agreements or rules of employment, such matters shall be delivered to the relevant workers at their request.

Second, I’d like to emphasize that the Article 20 of the Act prohibits predetermining penalty for breach of contracts. The purpose of the Article is to prevent employers from forcing employees to work. I’ve already explained the Article 20 of the Act in the previous posting, but I’d like to mention it again, I’ve received several inquiries on the contracts prescribing the amount of compensation in case employees breach the contract. If there are clauses predetermining penalty, it is necessary to request to remove the clauses. I, again, inform you of the Article 20 of the Act as below;

Article 20 (Prohibition against Predetermination of Penalty for Breach of Contracts)

An employer shall not enter into any contract in which a penalty or indemnity for possible damages caused by the breach of a labor contract is predetermined.

  

Third, if you retire the work, the wages and severance would be paid within 14 days from the retirement. Please note that the interest on the delayed payments shall accrue if the employer doesn’t pay the money that he or she should have paid. The relevant Articles of the Act are as follows;

Article 36 (Settlement of Payments)

When a worker dies or retires, the employer shall pay the wages, compensations, and other money or valuables within 14 days after the cause for such payment occurred: Provided, That the period may, under special circumstances, be extended by mutual agreement between the parties concerned.

Article 37 (Interest for Delayed Payment of Wages)

(1)  When an employer fails to pay the whole or a part of the wages and the allowances (referring to only lump-sum allowances) provided for in subparagraph 5 of Article 2 of the Guarantee of Workers' Retirement Benefits Act which he/she is liable to pay under Article 36 within 14 days after the cause for such payment occurred, he/she shall pay interest accrued for the delayed days from the following day to the day of the payment in accordance with the interest rate prescribed by Presidential Decree by taking account of the economic situations such as overdue interest rates etc. applied by the banks established under the Banking Act within the limit of 40/100 per year.

(2)  The provisions of paragraph (1) shall not apply where an employer delays the payment of wages for natural disasters, calamities, or other reasons prescribed by Presidential Decree, for the period in which the said reasons exist.


Fourth, what actions can you take in case the employer doesn’t pay the money that you are supposed to be paid? You may terminate the contract and file a claim for the damage with Labor Relations Commission. Article 19 of the Act states as follows;

Article 19 (Breach of Terms and Conditions of Employment)

(1)  When any of the terms and conditions of employment as expressly set forth pursuant to Article 17 is not observed, the worker concerned shall be entitled to claim damages on the ground of the breach of the terms and conditions of employment and may terminate the labor contract forthwith.

(2)  When a worker intends to claim damages in accordance with paragraph (1), he/she may file a claim with the Labor Relations Commission, and, if the labor contract has been terminated, the employer concerned shall provide travel expenses for returning home to the worker who changes his/her residence for the purpose of taking up a new job. 


The action most often used is reporting the delayed payment wage with Regional Employment and Labor Administration in your area. The processes are as follows

(1) When delayed payment is reported, a labor supervisor will be assigned, and the employer will be notified within a week or two weeks.

(2) A labor supervisor will call the employer and the employee to investigate the issue. Investigation will take approximately 25 days.

(3) If the employer is found to have delayed the payment, the labor supervisor will order payment to the employer.

(4) If the employer pays the money to the employee, the case is ended. However, unless the employer pays, the case will be sent to the public prosecutor’s office. The employers who doesn’t pay the money or severance or other valuables for the employee shall be punished by imprisonment for not more than three years or by a fine of not exceeding 20 million won according to Article 109 of the Act.    

(5) If the employer doesn’t pay for the money in spite of payment order of a labor supervisor, the employee may file for a small substitute payment or a civil suit with the court. The employee may get paid through the compulsory execution with final judgment.


Lastly, finishing the series of posting on Korean Labor Standards Act, I would like to mention the resignation. The Act doesn’t clearly state the resignation of worker. The worker may resign whenever he or she wants if he or she gives notification to the employer and the employer accepts it. However, what if the employer doesn’t accept it? In this situation, the Article 660 of Korean Civil Act may be applied. The Article is as follows;

Article 660 (Notice of Rescission for Future of Contract of Employment in which No Period has been Fixed)

(1)  If no period for the employment has been fixed by the parties, either party may give notice to the other party of his intention to rescind the contract for the future at any time.

(2)  In the case of paragraph (1), the notice of intention to rescind for the future becomes effective after one month has elapsed from the date of receipt by the other party of such notice.

(3)  If remuneration has been fixed on a set and regular periodical basis, the rescission of the contract for the future shall be deemed to be effective after one full period has elapsed from the date of completion of the current period during which the other party received the notice of intention to rescind the contract for the future.

If you leave the work without notice or your resignation is not approved by your employer, your employer may claim a compensation for the damage your sudden resignation. Accordingly, please be careful when you resign.


I’ve finished the series of postings on Korean Labor Standards Act. As I mentioned in the first posting on the Act, I’ve seen not a few workers having labor issues due to their labor contracts having clauses against the Act. Therefore, I was to help the workers to understand their rights and keep them. I hope that this series of postings would be useful when the workers have questions on labor contracts or other labor issues.

If you have any further inquiries, please send me an email (yhwang618@gmail.com). My office is located near Seoul District Court and Gyodae station in Seoul. 

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Friday, February 2, 2018

Korean Labor Standards Act (3)

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This is the third posting on Korean Labor Standards Act (hereafter referred to as “the Act”). In this posting, I’m going to inform you of the legal actions in case you’re unfairly dismissed. I was to include the way to deal with unpayment in this posting, but I’d like to concentrate on the remedy for unfair dismissal this time as there are many to be mentioned for that. Therefore, the legal actions for unpaid wages or severance will be covered in the next posting. Let’s focus on the remedy for unfair dismissal. 

First, it is necessary to check out whether your workplace has five or more regular workers because the relevant Article, the paragraph (1) of Article 23 restricts the workplace having five regular workers or more. The paragraph (1) of Article 23 of the Act is as follows;

Article 23 (Restriction on Dismissal, etc.)

(1)  An employer shall not, without justifiable cause, dismiss, lay off, suspend, or transfer a worker, reduce his/her wages, or take other punitive measures (hereinafter referred to as "unfair dismissal, etc.") against him/her.     

Second, if the number of regular workers of your workplace is five or more and you’re unfairly dismissed, you may apply for remedy to the Labor Relations Committee. Please note that the remedy shall be done within 90 days from the dismissal. The relevant Articles of the Act are as follows;

Article 28 (Request for Remedy from Unfair Dismissal, etc.)

(1)  When a worker is subjected by the employer to any unfair dismissal, etc., he/she may request a remedy therefor from a labor relations commission.

(2)  A request for remedy under paragraph (1) shall be made within three months from the date of the unfair dismissal, etc.


Third, after the remedy for unfair dismissal is requested, the Labor Relations Committee shall investigate the issues and examine the parties concerned. It takes approximately 2 to 4 months for the decision to be made. If a remedy decision is made, the employee may come back to the former workplace or receive the money or the value equivalent or higher than wages he or she would have received working the former workplace. Please refer the Articles of the Act as below;

Article 30 (Order, etc. for Remedy)

(1)  If a dismissal, etc. is judged to be unfair in consequence of the examination under Article 29, the Labor Relations Commission shall issue to the employer an order for remedy, and, if the dismissal, etc. is judged not to be unfair, make a decision to reject the request for remedy.

(2)  The judgment, order for remedy and decision of rejection under paragraph (1) shall be notified in writing to the employer and worker, respectively.

(3)  In issuing an order for remedy (only referring to an order for remedy following dismissal) under paragraph (1), if a worker does not desire to be reinstated in his/her former office, the Labor Relations Commission may, instead of issuing an order to reinstate him/her in his/her former office, order the employer to pay such worker the amount of money or other valuables equivalent to or higher than the amount of wages which he/she would have been paid if he/she had offered work during the period of dismissal.

Fourth, what if the employer who is given remedy order doesn’t comply with it? There is an Article prescribing that he or she shall be imposed charge 20 million KRW or less. The relevant Article of the Act is as below;

Article 33 (Charges for Compelling Performance)

(1)  The Labor Relations Commission shall impose charge for compelling performance of not exceeding 20 million won on an employer who fails to comply with an order for remedy (including the decision made by reexamination in which an order for remedy is contained; hereafter in this Article, the same shall apply) within the specified deadline for executing the order after such order is issued.

(2)  The Labor Relations Commission shall give the employer a prior notice in writing to the effect that the charge for compelling performance will be imposed and collected, by not later than 30 days before it is imposed pursuant to paragraph (1).

(3)  The imposition of charge for compelling performance pursuant to paragraph (1) shall be made in writing specifying the amount of the charge for compelling performance, grounds for imposition, payment deadline, receiving institutions, methods of raising an objection, agency to which an objection may be raised, etc.

(4)  The kinds of violation subject to the imposition of the charge for compelling performance under paragraph (1), amounts of imposition by the degree of violation, procedures for return of the charge for compelling performance imposed and collected, and other necessary matters shall be prescribed by Presidential Decree.

(5)  The Labor Relations Commission may impose and collect the charge for compelling performance provided for in paragraph (1) repeatedly within the limit of two times per year from the date when it issues the first order for remedy, until the order for remedy is complied with by the person subject to the order for remedy. In this case, the charge for compelling performance shall not be imposed and collected for more than two years.

(6)  The Labor Relations Commission shall not impose an additional charge for compelling performance if the order for remedy is complied with, but shall collect the charge for compelling performance already imposed before the order for remedy is complied with.

(7)  If the person liable to pay the charge for compelling performance fails to pay it by the due date for payment, the Labor Relations Commission may urge him/her to pay it within a fixed period, and, if the charge for compelling performance provided for in paragraph (1) is not paid within the fixed period, collect it in the same manner as delinquent national taxes are collected.

(8)  When the employer subject to the order for remedy fails to comply with it by the deadline for execution thereof, the worker concerned may inform the Labor Relations Commission thereof within 15 days after such deadline has expired.  


Fifth, you may wonder whether an employer or employee may raise an objection to the decision by the Labor Relations Committee. An employer or employee may request reexamination to the Central Labor Relations Commission. The request shall be done within 10 days from the decision. If an employer or employee doesn’t accept the decision by reexamination, he or she may file an administrative suit. Please note the Articles of the Act as below.

Article 31 (Confirmation of Order, etc. for Remedy)

(1)  An employer or worker who is dissatisfied with an order for remedy or a decision of rejection made by a local Labor Relations Commission under the Labor Relations Commission Act may apply for reexamination to the Central Labor Relations Commission within ten days from the date when he/she has received a written notice of such order or decision.

(2)  With respect to a decision made by the Central Labor Relations Commission's reexamination under paragraph (1), the employer or worker may institute a lawsuit pursuant to the Administrative Litigation Act within 15 days from the date when he/she is served with the written decision made by reexamination.

(3)  If neither application for reexamination nor administrative litigation is filed within the period referred to in paragraph (1) or (2), the order for remedy, the decision of rejection, or the decision made by reexamination shall become final and conclusive. 

I hope that this posting would be helpful for you to protect yourself from unfair dismissal. In the next and the last posting on Korean Labor Standards Act, I’m going to introduce the legal actions you may take if you’re not paid wages or severance according to the clause stated in your labor contract.



If you have any further inquiries, please send me an email (yhwang618@gmail.com). My office is located near Seoul District Court and Gyodae station in Seoul. 

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