Posts Tagged ‘Korea legal’

Lone Star Deal Moving Forward

Saturday, March 12th, 2011
Lone Star Deal Moving Forward

By Don Southerton, KoreaLegal.org Editor

Texas-based Lone Star’s sale of it KEB holdings seem to be making progress. Lone Star has long been seen by some Koreans as a prime example of a western firm reaping huge profits from investments in Korea.  I’m more objective.  Investors look to make a profit, and Lone Star is no different.  Interestingly, Hana Bank to fund their KEB acquisition has partnered with a number of US investment firms.

Lone Star’s stake sale to Hana will mark its exit from the country after it bought 50.5 percent of KEB for $1.2 billion in 2003. It previously attempted to sell KEB to Kookmin Bank for $7.6 billion in 2006 and HSBC for $6.3 billion in 2008.

SEOUL, March 12 (Yonhap) — Hana Financial Group Inc., South Korea’s No. 4 banking group, is expected to pay an additional 89 billion won (US$79 million) to U.S. buyout firm Lone Star Funds in a deal linked to its takeover of the nation’s fifth largest lender Korea Exchange Bank, industry sources said Saturday.

In November, Hana Financial clinched a deal to buy a 51.02 percent stake in Korea Exchange from Lone Star Funds for 4.69 trillion won.

In the contract, Hana Financial agreed to allow Lone Star to receive as much as 280 billion won in 2010 dividends from Korea Exchange, or 850 won per share.

But Korea Exchange decided earlier in the day to pay 580 won in dividends per share, which will allow Lone Star to reap around 191 billion won in dividends.

Lone Star took over Korea Exchange in late 2003 when the lender was in financial trouble by purchasing a 51 percent stake for about 1.4 trillion won. The fund later boosted its share to 64.62 percent but sold part of that in 2007.

Earlier this week, South Korea’s Fair Trade Commission gave approval for the deal. The deal also requires approval from South Korea’s financial regulator.

 

 

Lone Star Deal Moving Forward

Korean High Court Acknowledges Correlation Between Smoking and Lung Cancer

Saturday, February 19th, 2011
Korean High Court Acknowledges Correlation Between Smoking and Lung Cancer

By Don Southerton, Editor KoreaLegal.org

Tobacco lawsuits have a long history in the U.S. and West.  Smoking although more than popular in Korea has drawn attention in the wake of the country’s Well-being trend.  This recent court decision echos early efforts to bring lawsuit against Big Tobacco in the American South. The Seoul High Court ruled that there was considerable correlation between smoking and lung cancer.

Big Tobacco on the Dock

A meaningful ruling came out yesterday in a lawsuit filed by a group of smokers against Korea Tomorrow & Global (formerly Korea Tobacco & Ginseng), which manufactures and sells tobacco products. The Seoul High Court ruled that there was considerable correlation between smoking and lung cancer. It added that the plaintiffs had been smoking for a long period of time and suffered lung cancer, acknowledging the epidemiological relevance.

The ruling is the first-ever confirmation of the common knowledge that smoking increases the risk of lung cancer. The appeals court overruled a lower court’s ruling that there was no evidence that proved the plaintiffs suffered from lung cancer as a result of smoking. If the Supreme Court upholds the ruling, it may cause huge repercussions as the decision provides legal grounds for many smokers with lung cancer to file separate lawsuits against tobacco companies.

The appeals court, however, upheld the lower court’s ruling that KT&G was not liable for compensation because the plaintiffs failed to prove that KT&G was involved in illegal practices in the course of manufacturing and selling tobacco.

In other words, the court didn’t agree with the plaintiffs’ argument that the government and KT&G attempted to deceive customers by covering up the dangers of tobacco and mislead them with sales gimmicks, such as calling several tobacco brands “light” or “mild” to make them appear less harmful to the health.

The harmful effects and nicotine addiction have been proven through medical research. As a result, an avalanche of lawsuits were filed not only by individuals or groups but also by health insurance companies and governments in the United States. In 1998, a state government in the U.S. won a lawsuit against tobacco companies and landed a whopping amount of compensation – $246 billion – through a so-called Mass Settlement Agreement. The family of a smoker who died from lung cancer also won a lawsuit against Phillip Morris and received $80 million as punitive compensation.

The victory of KT&G, however, does not grant it immunity from being responsible for causing health problems. It is regrettable that KT&G refused to accept the court’s arbitration plan demanding the company establish a public foundation to alert smokers to health risks.

The central and local governments should also do their bit by increasing the bans on smoking in public places.

Source: JoongAng Daily

Korean High Court Acknowledges Correlation Between Smoking and Lung Cancer

Franchising in Korea: An Overview

Sunday, November 7th, 2010
Franchising in Korea: An Overview

By Don Southerton, Editor

Korea Legal.org looks at Korea-facing legal issues and shares insights into a wide variety of topics. Franchising comes with its own set of rules, regulations, and compliance. With regard to Korea, franchising is popular. Korea Times‘ reporter Cathy Rose A. Garcia provides a great overview of the industry.

Franchise businesses booming in Korea

By Cathy Rose A. Garcia

What do BBQ Chicken, McDonald’s, Caffe Bene and Starbucks have in common? Aside from being popular food and drink businesses, all are franchises of international and Korean brands. Plus all of them have a ubiquitous presence in Korea.

The franchise industry has been growing significantly in the past few years in Korea. The trend was jumpstarted by fast food restaurants, which was followed by family restaurants, clothing chains, cleaning services, educational institutions and discount stores.

In 1999, the number of franchise businesses in Korea was only around 1,500 with 120,000 outlets. Now, the number has doubled.

According to the Ministry of Knowledge Economy’s distribution and logistics division, the franchise industry in Korea is worth an estimated $70.2 billion. Franchises for food services, including fast food chains and family restaurants, account for around 52 percent or $36.5 billion.

The retail sector, such as convenience stores and consumer goods, accounts for 36.2 percent or $25.4 billion of the total. The remaining 11.8 percent or $8.2 billion includes education, real estate, cleaning and mailing services.

And judging by the good turnout at the Franchise Seoul 2010 at the COEX last week, there is still a growing demand for these business opportunities. The fair featured mostly food service franchises, with familiar names such as Home Chicken, Papa John’s and Subway. There were also representatives from retail, children’s products, education, computers, health aids, cosmetics and rental services.

Experts believe the potential for the franchise industry are bright, especially in the service sector. Among the areas with good prospects are: senior care, party planning and catering, fitness, personal services, frozen yogurt, green growth, pet products and children’s items.

Capital costs

Lee Seong-kyu, a 35-year-old office worker, said he was looking for business ideas at the Franchise Seoul fair. He was considering opening a foreign food outlet but the popular franchises require a lot of capital, not to mention finding the right location.

“A franchise might seem easier because the business has already been tried and tested. The only obstacle would be raising the capital, some require big franchise and royalty fees, plus the equipment and rental expenses,’’ Lee said.

Data compiled by the Seoul Global Business Center showed that the average capital necessary to open a store is over 100 million won. Opening a restaurant or a bakery would need around 200 million won, while a service-related franchise would entail around 170 million won.

A report by the U.S. Commercial Service Market Report 2010 indicated that U.S. franchises are sought-after in Korea. “Korean franchisees are seeking and prefer to do business with U.S. franchisers that can offer established brand names to Korean consumers and value the transfer of American management skills provided by U.S. headquarters,’’ the report said.

But potential Korean franchisees are turned off by the high fees and royalties required by the American headquarters.

Subway, the American sandwich chain, charges a franchise fee of $10,000, but the total investment, including equipment, lease, and supplies, would reach between 100 million to 130 million won.

Another American pizza chain Papa John’s demands a 20 million won franchise fee, and an ongoing royalty of 5 percent of net sales every month, with a total cost of roughly 150 million won.

“Other common franchising requirements, such as a minimum facility size and the expected number of store openings within a certain period are often very challenging for Korean franchisers to meet,’’ the report said.

Boom in local franchises

There’s no doubt international franchises remain prominent, but domestic chains are also becoming popular among local businessmen. Korean franchises do not require much capital or large royalties. Also unlike foreign franchises, the local ones are already attuned to Korean tastes and targeting Korean consumers.

Consider the fried chicken craze in recent years. The Korea Franchise Association reported there are about 35,000 fried chicken franchises in the Korean market, as of last year, led by popular brands such as Kyochon Chicken, BBQ Chicken and Two Two Fried Chicken.

Another fried chicken chain, Chicken Mania, requires a 5 million won franchise fee and no royalties. The estimated total cost in opening a Chicken Mania franchise is around 46.5 million won.

To open a Cafe Kai ice cream & coffee shop branch, one needs to have 66 million won, which includes the 5 million won franchise fee and 3 million won in royalties.

Jun Hyung-joon, a franchising consultant, said the hottest property in Korea right now is local brand Caffe Bene. The coffee shop chain has set the record for the highest number of stores opened in the shortest amount of time, as it aims to challenge American giant Starbucks in Korea. It opened in 2008, but in just two years, the company has expanded to 240 stores.

As a purely local franchise brand, Caffe Bene serves special blend coffee, Belgian waffles and Italian gelato. Its menu might not seem that different from Starbucks, Coffee Bean, Angel-in-Us and Holly’s, but it has appealed to many customers because of its lower prices, comfortable atmosphere and the fact that it donates a portion of its profits to charity.

To open a Caffe Bene store, one needs to invest at least 215.8 million won, according to the company website. This includes the 10 million won franchise fee, 100 million won for the interior and 78 million won for the supplies.

Caffe Bene’s growth has been attributed to the use of Korean celebrities to promote the brand. “The growth has been so fast. Their rapid growth also has something to do with “star marketing.” They use popular stars to promote the cafe. Star marketing is always effective in Korea,’’ Jun said.

However, its effectiveness has only been proven in Korea. As Caffe Bene looks to the overseas market for future growth, there are doubts whether it can replicate its success. Hallyu or Korean wave remains strong in Asia, but Jun expressed doubts whether Korean celebrity endorsements could help Caffe Bene with its plans to expand into Asian countries.

Tips for franchisees

Before deciding on whether to sign a contract with a franchiser, Jun suggests doing a lot of research and making inquiries about the company first.

“There’s a franchise information disclosure law, so they are required to provide the information. You can check all the information online, to see how many outlets they have and their sales. Also check the credibility and credit standing of the franchisor to make sure it is stable,’’ Jun said.

The franchisors should provide all prospective franchisees with a disclosure document at least 14 days before signing an agreement or payment of the fees. If the disclosure is not made, the franchisee can demand a refund of its payment. Franchisors are also required to register the disclosure statements with the Korea Fair Trade Commission.

“It is also best to consult with a franchise consultant, since it is our job to guide the franchisee through the entire process,’’ Jun added.

Franchising in Korea: An Overview

Korea Legal.org October 2010 Update

Sunday, October 3rd, 2010
Korea Legal.org October 2010 Update

By Don Southerton,  Editor

The site continues to draw lots of interest. We are always open to suggestions and input on topics and areas of interest.

We’re asking top experts to contribute  and share their perspective. Look for timely posting on a number of Korea-related legal and business issues.

For example in Feb, 2010, contributor and lawyer Andrew Barbour shared a very comprehensive list of Korean law firms and government agencies.  See KOREA LAW LINK

We also appreciate the great content submitted by lawyer Kent Wong on Korean franchise laws and Korean FDI.

Interested in contributing?

Please contact me at dsoutherton@bridgingculture.com

Korea Legal.org October 2010 Update

Korea’s Legal Industry–An Interview with Tom Pinansky, Senior Foreign Attorney

Saturday, September 18th, 2010
Korea’s Legal Industry  An Interview with Tom Pinansky, Senior Foreign Attorney

By Don Southerton, Korea Legal Editor

Our sister website Korea Business Central recently posted a very interesting interview with Tom Pinansky, Senior Foreign Attorney at Barun Law, as well as “Of Counsel” to U.S. firm Preti, Flaherty, Beliveau & Pachios.

Titled “Understanding Korea’s Legal Industry: Opportunities and Challenges,” Korea Legal readers will enjoy the insights Tom provides based on his over 20 years experience in Korea working with their legal system.  As discussed in past  Korea Legal articles, barriers still limit foreign laws firms from practicing in South Korea, Tom points out that selecting a lawyer and law firm then requires some scrutiny and understanding. The interview is a great resource.

CLICK HERE for MP3 Download.

To access the full Korea Business Central Interview series Click Here

Korea’s Legal Industry  An Interview with Tom Pinansky, Senior Foreign Attorney

South Korea’s Franchising Laws: An Overview

Monday, September 6th, 2010
South Koreas Franchising Laws: An Overview

By Kent Wong, Senior Foreign Attorney (Partner) at APEX LLC

Korea’s franchising industry has rapidly developed in recent years, led primarily by fast food restaurant chains. This growth has expanded to include family restaurants, retailing and retail stores, hotels, clothing, mailing services, cleaning services, as well as educational institutions.

There are no specific legal requirements for overseas franchises to operate in the Korean market, nor is there a requirement for government approval with respect to international franchise agreements. However, franchisees need to comply with various Korean laws, including the Korean Civil Act and Korean Commercial Code, the Fairness in Franchise Transactions in Franchise Business Act (Franchise Act) and the Sub-franchisee’s Fair Trade Act (which closely parallels the rules that exist for sub-franchisees in the US). Below is an overview of some of the questions commonly faced by international franchisors and foreign investors looking to enter the Korean market.

Legal definition of a franchise
Under the Fairness in Franchise Transactions in Franchise Business Act (Franchise Act), a ‘franchise’ is defined as:
... a continuous business relationship in which the franchisor allows the franchisee to sell goods (including raw and auxiliary materials) or services under certain quality standards and business methods using its trademarks, service marks, trade name, signs and other business marks (collectively, “Business Marks”), and supports, educates and controls the franchisee with regard to relevant management and operating activities, and in which the franchisee pays franchise fees to the franchisor in return for the use of the Business Marks and the support and education concerning the management and operating activities.

Laws governing the offer and sale of franchises
The Franchise Act, which was enacted on 1 November 2002 and most recently amended on 3 August 2007, and its accompanying Presidential Decree, taking effect on 6 November 2002 is the primary statute applicable to the franchisor-franchisee relationship. Additionally, the Monopoly Regulation and Fair Trade Act (MRFTA) and regulations promulgated by the Korea Fair Trade Commission (KFTC) are generally applicable to the relationship. Notable are the KFTC’s 1997 Guidelines on International Contracts which remain in effect and could potentially impact the franchisor-franchisee relationship where one of the parties is not a Korean resident.The KFTC regulates franchises in Korea. The KFTC has a franchise-related department and has the authority to impose administrative measures against those who engage in unfair activities.

Forms of business entities
A chusik hoesa (stock company) and a yuhan hoesa (limited liability company) are the business forms in Korea that would be relevant to the typical franchisor. About 90% of all Korean companies are chusik hoesa, which are similar to American stock companies. Only this legal entity, plus occasionally yuhan hoesa, is recommended for foreign investors and businesses.

Laws and agencies which govern the formation of business entities
Primarily, the Korean Civil Act and Korean Commercial Code govern the formation of business entities. In addition, the Foreign Investment Promotion Act relates to the formation of business entities from foreign investment.
The Korean Court Commercial Registrar, National Tax Service and Ministry of Strategy and Finance are the main agencies that have authority relating to the formation of business entities.

Methods of establishing a franchise
A foreign franchisor intending to expand their franchise in Korea may consider a variety of methods. While a single unit franchise or area development franchise is occasionally used, the more popular method is to use a master franchise arrangement. In Korea, international franchising typically entails a foreign ‘master franchisor’ working with a domestic ‘master franchisee’. Master franchisees can either be a 100% subsidiary of the master franchisor or a joint venture company with a local partner; a pure Korean company may also become a master franchisee. The master franchisee then relies on “sub-franchisees” for running the franchise outlets, which are either directly owned and operated by a master franchisee or owned and operated by an independent person or entity – ‘a pure sub-franchisee’.

Tax for foreign business and individuals
The principal taxes affecting businesses in Korea include corporate tax, individual income tax, value added tax, customs duties and inhabitant and education tax levied on corporate tax, income tax and other taxes.
The franchisor has a duty to pay taxes (corporate tax or individual income tax) on royalty incomes. However, the tax rates are limited to the rate stipulated in the tax treaty between Korea and the state in which the franchisor resides. In this regard, the franchisee has a duty to withhold such taxes from the royalties it pays to the franchisor.

Relevant labor and employment considerations
Under the Korean Civil Code, an employer is liable for a tort committed against a third party by an employee who is under the employee’s actual direction or supervision, in relation to the performance of a work that is directed or supervised by the employer. Therefore, if a franchisee or an employee of a franchisee is deemed an employee of the franchisor, the franchisor may be held liable for damages to a third party caused by the franchisor or the employee of the franchisee during performance of his or her work.

About the author Kent Wong is a senior foreign attorney and partner at Apex Law LLC, based in its Seoul office. Kent handles a range of corporate and commercial matters, with a particular emphasis on investment and doing business in Korea. Kent undertakes domestic and international private equity work in addition to general M&A, corporate and corporate finance transactions and advisory mandates. He has published articles and given lectures on foreign investment, project financing and international tax regimes.

Email: kwong@apexlaw.co.kr

South Koreas Franchising Laws: An Overview

Practical Korean Labor Law: Some Insights

Sunday, August 29th, 2010
Practical Korean Labor Law: Some Insights

This article in Korea Times shares some great insights into Korean labor law and practices. The author, Nick Bibby, is a doctoral student in labor law at Dong-A university in Busan.

Being late isn’t just rude

Practical Korean Labor Law: Some InsightsBy Nick Bibby

Almost every day, the phone rings, or the email pings and, after the niceties, the conversation starts something like this: “My boss says he can’t afford to pay me, is that legal?”

After a few minutes figuring out the details I give the answer I could easily have given to the first question. Essentially, it’s illegal but it’s important to be practical.

Korean law is quite clear that any worker (with the exception of certain people engaged on a specific project) must be paid at least once a month ― it doesn’t matter whether the payment rate is by the hour, the day, the week, the month, or the millisecond.

That’s the important bit, here’s the practical one. Unlike the West, it’s standard in Korea for people to be paid late if the payday falls on a weekend or a national holiday. It’s also fairly routine for the first month’s salary to take its own sweet time.

Legally a salary must be paid once a month, in cash ― which means no payment in kind ― and on an agreed date. However, it’s important to keep a sense of perspective, if your pay’s delayed by 24 hours, it’s annoying but scarcely a crisis. Alternatively if, as with some cases I’ve dealt with, it’s a month, two months, or three months, then clearly it’s a different issue.

Let’s take two examples just from last week. I’ve changed the names so as to not impact any future legal proceedings. Wednesday’s case ― let’s call her Amy ― was straightforward. She was paid late and when the cash finally turned up it was the wrong amount.

Amy’s employer said that he would hold over the first 14 days worth of pay and pay it at the end of the contract. Having talked to her co-workers, Amy quickly realized that her employer had a reputation for non-payment, employment without a visa, dismissal in the 11th month and so forth.

Essentially the boss is either a crook, an idiot or both. The objective here is securing a letter of release and the outstanding money. Amy wants to stay in the country but not in the job.

Although it’s illegal for an employer to discriminate against a worker who has taken legal action against them to protect their rights, it’s usually worth trying to play nice first. The first focus is the letter of release and getting as much of the cash as possible. With both of those life gets easier. If that doesn’t work there are still options.

Critically, whether you resign or are fired (unless it’s for gross-negligence, misconduct or a criminal offense) you must be either given or paid 30 days notice. The idea that if you’re shown the door you have to race to the airport is also a myth.

Your first stop should be your nearest immigration office to extend your visa, usually a simple process. Next is to the Labor Board or, more usually, a foreign workers’ rights center or a migrant workers support organization whose staff have the language skills to handle the case for you. Legally, you must be paid, that’s the bottom line.

Let’s take case number two, let’s call him Ben. He’s due to leave the country at the start of the following week, today is Thursday. His boss has paid him but it’s short by a little over 1.5 million won. In addition, his employer wants to compel him to stay in the country. Let’s deal with the law first, Ben must be paid ― the full amount owed and on time. In addition, an employer cannot oblige a worker to extend their contract.

The question he had is can he withhold his labor until payment is made. It’s a common question and a debatable point. Technically the employer has breached the contract, so Ben would be within his rights ― payment has not been made for work that has been given.

However, whether it’s practical when you’re leaving the country in two days and would need to remain, in practice, to argue the point is another matter.

First there’s the solution mentioned above, extend the visa and fight or hand it over to a human rights organization. When you have a couple of month’s labor as a bargaining chip, it’s got leverage. When it’s a couple of days, less so. As a result the second option is probably better ― especially with his trip around Asia already planned and paid for.

In some ways the important thing is to ensure that issues like this don’t happen to other people. Forty-eight hours before you leave may be too late and a month after you arrive too early to argue a point. With a bit of planning these problems need never emerge.

There are plenty of community organizations out there, some voluntary, others commercial ― some are a bit of both. Late payment and non-payment are fraud and theft respectively. In the same way that anyone knows where their passport, wallet or bankcard is, it’s important to know where you rights are too.

Nick Bibby is deputy CEO of RightsWatch rightswatch.co.kr ― to be launched in early September) and a doctoral student in labor law at Dong-A university in Busan. He can be reached at Nick.bibby@gmail.com

Practical Korean Labor Law: Some Insights

Korean Companies Desire Foreign Law Firms Services

Wednesday, June 30th, 2010
Korean Companies Desire Foreign Law Firms Services

By Don Southerton, KoreaLegal.org Editor
When Korea opens its legal services market to foreign firms some Korean companies might turn to foreign law firms—especially in specialized areas.  This comes as no surprise to those who follow the dynamics of the Korean legal system. Many feel opening the market will encourage competitiveness, reduce fees to clients, and improve service.

The article notes…
Major domestic companies has given Korean law firms 79 out of 100 points for competitiveness, and 83 percent of the companies say they could turn to foreign law firms should Korea’s legal market be opened.

The Dong-A Ilbo polled 50 large domestic corporations, state-run companies and financial institutions and 18 major law firms on the competitiveness of Korean law firms in response to the opening of the Korean legal market.

On whether they would turn to foreign law firms after the market’s opening, 71.4 percent or 35 of the legal departments of the 50 companies said they would do so for “certain sectors.” Just five companies (16.3 percent) said no.

On which sector will be the most affected by the opening, 13 law firms said the financial sector and six firms said the corporate sector, including mergers and acquisitions and fair trading. This indicates that foreign law firms will gain ground in the domestic market for legal services in finance and business, where they have a competitive edge.

Korean Companies Desire Foreign Law Firms Services

South Korea Ponders Move Towards U.S.-style Grand Jury System

Sunday, June 20th, 2010
South Korea Ponders Move Towards U.S. style Grand Jury System

By Don Southerton, Editor KoreaLegal.org

South Korea’s legal system has evolved over the past decades. Once rooted in Neo Confucian tradition, as Korea opened to the West they adopted much from Europe.  This WSJ article notes a mandate  to change, which includes, for example, a move towards the American-style grand jury system.

SEOUL—South Korea’s top prosecutor announced his support for the introduction of grand juries in the country, in what would be a major change to a legal system where power is concentrated with prosecutors.

The move is the most significant of the proposals announced Friday by Prosecutor General Kim Joon-gyu in response to a bribery and sex scandal involving about 100 current and former prosecutors in Busan, a city on South Korea’s southeast coast.

Mr. Kim proposed legislative changes to enact a U.S.-style grand jury system, a process that could take months, and said he would create citizens’ review panels for major cases in the meantime.

The decision could bring an advance in civil rights for South Korean individuals and a reduction in sometimes-abusive investigations of foreign businesses that have effectively been a trade barrier, analysts say.

For companies, South Korean prosecutors’ power has meant that simply being the target of an investigation can taint a reputation and damage business, even if no charges are brought. In the most high-profile such case in recent years, an attempt by the U.S. owner of Korea Exchange Bank to sell the institution was twice thwarted by a prolonged investigation into whether the company should have been allowed to buy the bank in the first place.

“It’s a paradigm shift,” says Jasper Kim, who teaches law in the international studies program at Ewha Women’s University in Seoul. “The question is in the execution, whether the grand juries function as simply a rubber stamp for prosecutors or as a bellwether test to a case.”

Prosecutors hold enormous power in South Korea’s justice system. Prosecutors, rather than police, preside over civil and criminal investigations. They decide whether to charge people with crimes, and don’t have to first prove the merit of the charges before a grand jury.

Prosecutors routinely disclose investigations to the media before charges are filed or trials are held, a practice that makes trials and court rulings less important for the public than an investigation.

The Busan scandal brought to a boil South Koreans’ long-simmering anger with prosecutors’ relatively unchecked power. In April, an investigation by South Korean TV network MBC turned up a construction-company executive who claimed to have systematically paid dozens of prosecutors for more than 20 years with cash, gifts, meals and prostitutes.

On June 9, the chairman of a special committee appointed to investigate the news report said some of the allegations were true. He recommended dismissal for a handful of prosecutors and financial penalties for others, though he didn’t recommend criminal charges because he found it difficult to link the payments to favors or other misconduct.

In a videoconference with 1,700 prosecutors nationwide on Friday, the prosecutor general, Mr. Kim, said the country needs a U.S.-style grand jury system for prosecutors to regain credibility. “The behavior of the prosecution will be revamped and those who do not follow the new trend will not keep their job,” Mr. Kim told the prosecutors.

South Korea’s legal system is rooted in communal practices that stretch back centuries, but it was modified 62 years ago with a civil-law-style system similar to France’s. The system instilled South Korean prosecutors with power and remained unchanged after the nation adopted a democratic constitution in 1987.

Abuses mounted through the years. In addition to occasional bribery scandals, prosecutors were widely perceived to be influenced by whatever political party held power. President Roh Moo-hyun, during his tenure from 2003 to 2008, sought to break the relationship between politicians and prosecutors and increase the role of judges as a check on prosecutors, but he stopped short of proposing a grand jury system.

WSJ Article Credit Evan Ramstad at evan.ramstad@wsj.com

South Korea Ponders Move Towards U.S. style Grand Jury System

North Korean Lawsuits in South Korea’s Courts

Sunday, June 6th, 2010
North Korean Lawsuits in South Koreas Courts

By Don Southerton, Editor KoreaLegal.org

This amazed me. North Koreans have rights in South Korean courts.  It does reflects a popular Korean mindset–One People, Two Nations.

An article in JoongAhn Ilbo, “More North Koreans filing lawsuits in the South” notes:
More North Koreans are filing claims in South Korean courts as the North’s economy worsens, experts say.

Yoon Dae-kyu, a professor at the University of North Korean Studies in Seoul, said because the South Korean Constitution recognizes the North as a part of the Republic of Korea, North Koreans have the same protections as their Southern neighbors.

The reverse does not hold true. Because the South’s constitution does not recognize the North Korean regime, other legal experts say it’s impossible for a South Korean organization or individual to stand trial based on North Korean law.

In one ruling last month, the Seoul Western District Court rejected a suit filed by a North Korean interest group in Seoul on behalf of North Korean writers who charged that a South Korean publisher violated their copyrights on a medical book.

The Foundation of Inter-Korea Cooperation had hired a lawyer to represent the North Koreans in their 100 million won ($81,499) claim, but the court “couldn’t establish that the attorney had the right of representation for the writers.”

North-South copyright disputes are not an unusual issue in South Korean courts. In another recent case, the North Korean grandson of a North Korean writer was awarded 5 percent of all future royalties on copies of his grandfather’s book “Hwang Jin-i” sold by a South Korean publisher.

The Foundation of Inter-Korea Cooperation, which was established in 2004 to foster cultural exchanges between the two Koreas, said it has so far handled nine cases of copyright violation on behalf of North Koreans with help from a North Korean office that deals with copyright issues.

“Literary works by writers from the North have been introduced to the South through China ever since the South Korean government formed diplomatic ties with China in 1992,” an official from the North Korean interest group said. “But copyright issues remain unresolved.”

But South Korean courts also address inheritance issues between families divided by the Korean War of 1950-53. In February, four North Korean siblings surnamed Yoon filed a 2.5 billion won inheritance claim against their South Korean half-brother and stepmother, after missionaries told them that their physician father had amassed a 10 billion won fortune after defecting to the South during the war.

The North Korean families sought an injunction to prevent their South Korean relatives from selling the father’s real estate, and the case is ongoing.

Attorney Han Myeong-seob, a member of Society for Research on North Korean Law, said he’s aware that the staggering economy in North Korea drove the North Korean government to issue guidelines that encourages its people to file suit to obtain inheritance rights in South Korea.

“It’s critical to come up with special laws that would react properly when local courts rule in favor of North Korean residents,” Han said.

North Korean Lawsuits in South Koreas Courts