Tuesday, May 29, 2018

Can Bitcoin be confiscated?

비트코인의 재산가치를 인정하여 범죄 수익일 경우
몰수 대상이 될 수 있다는 판결.

The Korean Supreme Court firstly ruled that, if gained by committing a crime, bitcoin (a kind of cryptocurrency) may be also confiscated as its property values may be recognized.

Friday, May 25, 2018

Amendment of Labor Standards Act (1) – Annual Paid Leave

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Recently, there have been amendments of Labor Standards Act (hereafter referred to as the “Act”) in Korea, so many workers are likely to experience changes. I’m going to serially post on the amendments of the Act, and in this first posting, I’d discuss the change of the Article on annual paid leave. Please note that the annual paid leave shall be only applied to the workplaces which have not less than 5 workers.  

The changed Articles will be applied from May 29, 2018, and it will be more favorable to the workers who have worked for less than a year and who have been on childcare leave.  
 

First, let’s look into the change of annual leave for the first year worker. The existing Article of the Act to be removed is as follows;
 

Article 60 (Annual Paid Leave)
(3)  Where an employer grants any worker a paid leave for the latter's first year of work, the former shall grant the latter a paid leave of 15 days, including the paid-leave referred to in paragraph (2), and, if the latter has already taken the paid-leave provided for in paragraph (2), shall deduct the number of days of such paid-leave from the said 15 days.

According to the third paragraph of the Article 60 as above, if the first year worker has taken all the annual paid leave given as a result of continuous working every month, he or she will have only 15 annual paid leave for the first two years. This might deprive the worker of the opportunity to take an enough rest from the work. Therefore, the paragraph of the Article has been determined to be removed.

 
Then what change, actually, the amendment will bring? As the amendment will be retroactively applied by one year, the amendment will cover the worker who entered the workplace after May 29, 2017. The worker starting work after May 29, 2017 is given 11 annual paid leaves for the first year and will take also 15 annual paid leaves for the second year without any deduction.



 
Second, I’d like to mention the amendment of the annual leave to be applied to the workers having been on childcare leave. The paragraphs of the Article on giving annual leave are as follows;

 
Article 60 (Annual Paid Leave)
(1)  Every employer shall grant any worker who has worked not less than 80 percent of one year a paid leave of 15 days.
(2)  Every employer shall grant any worker 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.
(6)  In applying paragraphs (1) through (3), any of the following periods shall be deemed the period of attendance at work
Currently, the childcare leave is not regarded as the period of attendance at work. However, due to the amendment, childcare leave will be deemed to be workdays, so the workers having childcare leave will not be disadvantaged when counting the future annual paid leave. The amendment will be applied to those who will request childcare leave from May 29, 2018.   
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.

 
All rights reserved
 

Monday, May 21, 2018

How can you discover your partner’s hidden property when the divorce is being processed?

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When considering divorce, there are many complicated issues, but above all, property division is very difficult to deal with. Many people who are to divorce or are likely to be divorced tend to hide their assets and property. As you might know, Korean judicial system does not have discovery like the one in the U.S., so it might be harder to find out your partner’s hidden property. However, there are several ways to find out the property to be divided. You (your lawyer) may request the court to order the public or governmental institutions for fact inquiries about your partner’s real estate and debt, and the financial institutions including banks, credit card companies, and insurance companies to submit your partner’s financial asset statement or bank account transactions. All of these are helpful for you to look into your partner’s financial status.

 

What if your partner has sold out his or her assets to others? If he or she intentionally sold or pretended to dispose of his or her assets including houses or buildings after marriage break down, you may file for may apply to the court for its revocation and restitution of its original status. That is, you may claim that the assets sold out shall be back to their original states. The relevant Article of Civil Act is as follows;

Article 406 (Obligee's Right of Revocation)

(1)  If the obligor has performed any juristic act which has a property right for its subject, with the knowledge that it would prejudice the obligee, the obligee may apply to the court for its revocation and restitution of its original status: Provided, That this shall not apply where a person who has derived a benefit from such act or a subsequent purchaser was, at the time of the act or of the purchase, unaware of the fact that it would prejudice the obligee.

 

(2)  The action mentioned in the preceding paragraph shall be brought within one year from the time when the obligee became aware of the cause for revocation, or within five years from the time when the juristic act was done.

   

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.

 

All rights reserved

Thursday, May 17, 2018

What if your workplace is taken over and you are dismissed?

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Some of employees sometimes face the sudden notifications of dismissal due to the business transfer or bankruptcy. In this blog, I’m to discuss how employees can deal with such embarrassing situations.
In principle, when a business is transferred to another and the owners mutually agreed employment buyout, the employees of the transferred or taken over business shall work under the same working conditions as the former ones. Or if the business refuses employment buyout, the employees will be dismissed. Then is it unfair dismissal? The Labor Standards Act (hereafter referred to as the “Act”) restricts dismissal for managerial reasons, but the dismissal is approved when the business is transferred or taken over. The relevant Article is as follows;  
Article 24 (Restrictions on Dismissal for Managerial Reasons)
(1) Where an employer wishes to dismiss a worker for managerial reasons, there must be an urgent managerial necessity. In this case, it shall be deemed that there is an urgent managerial necessity for the transfer, merger, or acquisition of the business in order to prevent managerial deterioration.
(2) In case of paragraph (1), the employer shall make every effort to avoid dismissal and shall establish and follow reasonable and fair criteria for the selection of those persons subject to dismissal. In this case, there shall be no discrimination on the basis of gender.
(3) Where there is an organized labor union which represents more than half of the workers at the business or workplace, the employer shall inform at least 50 days before the intended date of dismissal and consult in good faith with the labor union (where there is no such organized labor union, this shall refer to a person who represents more than half of the workers; hereinafter referred to as the "labor representative") regarding the methods for avoiding dismissals, the criteria for dismissal, etc. under the provisions of paragraph (2).
(4) When an employer intends to dismiss personnel under the provisions of paragraph (1) above the fixed limit as prescribed by the Presidential Decree, he/she shall report to the Minister of Labor under the conditions as determined by the Presidential Decree.
(5) When an employer dismisses workers in accordance with the conditions in the provisions of paragraphs (1) through (3), it shall be deemed as a dismissal with proper cause under the provisions of Article 23 (1). 
Then this is the question; is it required to give 30 days prior notification when there are urgent managerial reasons? The answer is YES. The Act states that the employer shall 30 days notification when he or she intends to dismiss for managerial reasons. Please refer to the Article 26 of the Act as below.
Article 26 (Advance Notice of Dismissal)
When an employer intends to dismiss a worker (including dismissal for managerial reason), he/she shall give the worker a notice of dismissal at least thirty days in advance of such dismissal, and if the employer fails to give such advance notice, he/she shall pay that worker ordinary wages for not less than thirty days: Provided, That this shall not apply in case where a natural disaster, calamity or other unavoidable circumstances prevent the continuance of the business concerned or where the worker concerned has, on purpose, caused a considerable hindrance to the business or inflicted any damage to the property and it falls under any cause as determined by the Ordinance of the Ministry of Labor.  
Additionally, the prior notification shall be delivered in written form to the employee according to Article 27 as follows;
Article 27 (Written Notice of Reasons, etc. for Dismissal)
(1) When an employer intends to dismiss a worker, he/she shall notify the worker in writing of the reasons for and time of the dismissal.

(2) The dismissal of a worker shall become effective only subject to a notification made in writing pursuant to paragraph (1).
In conclusion, even if there is an urgent managerial reason, the employer who intends to dismiss an employer shall give written notification at least thirty days in advance of such dismissal If he or she fails to do so, he or she shall pay ordinary wages for not less than thirty days. If the employer violates the Act, the employee may report the delayed payment with the labor office and apply for remedy for unfair dismissal with Labor Commission.
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.

All rights reserved.

Monday, May 14, 2018

Can a freelancer be protected by Labor Standards Act?

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Korean Labor Standards Act (hereafter referred to as the “Act”) fundamentally aims to secure and improve the fundamental living standards of workers. Then who are the workers? The Article 2 of the Act defines the term “worker” defines as “a person, regardless of the kind of occupation, who offers labor to a business or workplace for the purpose of earning wages”. Then, can one who made a freelancer contract be a worker and protected by the Act? These days, many foreign teachers in Korea work as freelancers. Therefore, it is greatly important to ask the questions whether a freelancer can be a worker or not. However, it cannot be answered in a word. In this post, I deal with the criteria that Korean Supreme Court (hereafter referred to as the “Court”) suggested in order to determine who would be a worker.

According to the Court, the title of the Contract is not critical in telling whether a freelancer is a worker or not. Rather, when judging whether the freelancer is a worker or not, many factors on the relationship between the employer and the freelancer should be considered. In other words, it is decisive to consider whether the freelancer is subordinate to the employer.
 

In particular, the Court gave several facts in determining whether the relation between the freelancer and the employer as follows; the fact that the employer establish rules for working; the fact that the employer decide what kind of work the freelancer performs; the fact that the freelancer cannot hire any other person; the fact that the freelancer does not take risk of the business; the payment means remuneration for the work; the fact the contract is exclusive to the employer; and other related facts to determine the relation is subordinate.

As above, even if one made a “freelancer contract”, you shall not be too quick to the conclusion that he or she cannot be protected by the Act. Rather, it is necessary to look into what the contract states and whether the freelancer is subordinate to the employer or not. Please do not forget the fact that the Act was established for the purpose of securing the right of not “the nominal workers” but the “real workers”.



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.


Tuesday, May 1, 2018

I moved to a new office. Please see my new name card!

 
 
On May 1st, I moved to a new office and joined The Joeun Lawfirm, located at 502, Law Center, Seochojungang-ro, Seocho-gu, Seoul, Korea.
 
I attached my name card and please contact me if you have any inquiries on legal issues.
 
 

 
 

 
 
 
 
 
 
 
 


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