Subscribe | LinkedIn Group

Dec 26, 2007

What to Be Thankful For

What to Be Thankful For
By Sean Hayes

Appeared in the Korea Times on Dec. 27, 2007

Christmas is a time of giving. So we should all give thanks that we live in one of the world's great nations.

I often criticize Korea, in these very pages and elsewhere, for not fully protecting freedoms, favoring the vested elite, excessively taxing, creating and fostering a bloated inefficient bureaucracy, and over-regulating.

My cynical nature often gets the best of me. Korea is a great nation where those shortcomings are not as serious as in many parts of the world. Korea, in only a handful of decades, is a nation that has overcome a horrific war, demoralizing poverty, and brutal dictators to become one of the models for economic success in Asia.

Korea has also been moving in the direction of becoming, not in name only, a constitutional democracy.

However, don't fret, I will continue, in the upcoming year, to criticize shortcomings, while hopefully balancing my inherent cynicism with a few mentions of hopeful developments.

So for this past year here are a few of things that I am thankful for.

Freedom of Speech and Press

In many places of the world, citizens, and of course foreigners residing in these countries, would not be able to criticize government in a local newspaper. In many parts of Asia, Africa, and the Middle East this type of column could place me in jail or lead to my deportation.

I have never feared that my writings will lead me to any difficulties in my life in Korea even when I criticize the very institutions that I owe my livelihood to.

Rule of Law

Korea has subordinated most of its power to law. Korea's constitutional democracy has created mechanisms, including the Constitutional Court, to help guarantee that the government will not act arbitrarily.

No longer can kings, the vested elite, government officials, and the like take residents' life, liberty, or property arbitrarily. Also, increasingly, the vested elite is being treated in a similar manner as the people. No longer can they rely on their power to avoid difficulties.

Capitalism

Korea has fostered the capitalist spirit. I owe my paycheck, the apartment I live in, the streets that I drive on, the health care system that I may employ, and the abundance of food that I consume, to the capitalist freedoms that allow private ownership of property and free markets.

The private ownership of property coupled with the ability to contract creates the incentive to create more wealth. Korea is a role model, in Asia, for the successful implementation of a capitalist market system.

Equality

For most of the world's history we have created castes and strictly assigned individuals to certain castes. Korea was no exception. Article 11 of the Korean Constitution guarantees equality and the Constitutional Court and in recent years the Human Rights Commission has been willing to fight for equal protection for all.

The Constitutional Court has made numerous rulings striking down laws that discriminate against women and the Human Rights Commission has been actively promoting the rights of foreigners, the disabled, and women.

We should all be thankful and realize that without the freedom of speech and press, the rule of law, capitalism, and respect for equality many Korean would choose to forgo the Korean system and many foreigners would choose to remain in their home countries.

We all know Korea and the rest of the world are facing many difficulties, but we should also be thankful that in Korea we are living decent lives because of the willingness of Korea to protect and foster our rights and liberties, promote democracy, and maintain the rule of law.

_____
SeanHayes@ipglegal.com

Dec 18, 2007

Impeachment Standard in Korea

Impeachment Standard in Korea
Appeared in the Korea Times on Decemebr 13, 2007

Dear Sean: A liberal party has initiated impeachment articles against three prosecutors. I remember reading an article about how impeachment occurs in Korea, but I can seem to find it. How can a government official, like a prosecutor, be impeached in Korea? Allen in Itaewon.

Dear Allen: The question brings to light the unique way that impeachment is handled in Korea. In Korea, as in many countries, impeachment begins by a vote in the legislature; however, Korea is unique in that the Constitutional Court is given power over removal.

Article 65 states that if "the President, the Prime Minister, members of the State Council, heads of Executive Ministries, Justices of the Constitutional Court, judges, members of the National Election Commission, the Chairman and members of the Board of Audit and Inspection, and other public officials designated by the Act have violated the Constitution or other Acts in the performance of official duties, the National Assembly may pass motions for their impeachment."

The motion of impeachment must be proposed by at least one third of the total members of the National Assembly and requires a concurrent vote of at least a majority of the total members of the National Assembly for passage. In contrast, to remove the president at least a majority of the total members of the National Assembly must propose and at least two thirds of the total members must vote for the motion.

After passage of the motion six votes at the Constitutional Court are needed to remove the officer from his office.

The most interesting issue is the standard employed by the Court. Article 53 (1) of the Constitutional Court Act provides that ``when there is a valid ground for the petition for impeachment adjudication, the Constitutional Court shall issue a decision removing the respondent from office.''

The court, in the impeachment of President Roh, refused to interpret the clause literally and thus proclaimed that ``minor violations'' cannot result in impeachment, since minor violation leading to removal may lead to an offense to ``the request that punishment under the Constitution proportionally correspond to the obligation owed by respondent, that is, the principal of proportionality.''

Thus, the court noted that government officials, subject to impeachment adjudication could only be removed for ``grave violations.'' The court noted that ``grave violations'' will be interpreted by the court by ``balancing the degree of negative impact on or the harm to the constitutional order caused by the violation of the law and the effect to be caused by the removal of the respondent from office.''

The impeachment motion will not be passed, but if it is, because of the standard and more importantly the total lack of evidence the court will not remove the prosecutors.

_____
SeanHayes@ipglegal.com

Speech Dilemma

Speech Dilemma
By Sean Hayes

Appeared in the Korea Times on Dec. 11, 2007


An American investigative news program, 20/20, aired a report that sheds light on the dark side of free speech in America and the difference in the treatment of speech in America vs. Korea.

The report featured a couple of stories concerning the perils of free speech. One of the stories concerned the 18-year-old daughter of Christos and Lesli Catsouras who died in a gruesome car accident.

Pictures of the accident reached the public and promptly the Catsouras received anonymous e-mails and text messages that contained the photographs of the accident. One photo included the picture of the 18-year-old daughter's decapitated and mangled body in the crumpled remains of the automobile.

A fake MySpace page was even created, which at first looked like a tribute to Catsouras, but quickly redirected to the ghastly pictures. The father, a real estate agent, received mail disguised as sales leads that also included the gruesome photos.

Another story concerned a psychologically fragile 13-year-old girl who committed suicide after having a long-term strictly online friendship with 16-year-old boy who was later found to actually be a school girlfriend that had a profound hate for the girl.

The school friend, disguised as the 16-year-old boy, was very friendly to the girl frequently telling her that she had beautiful eyes and a nice smile, but later, on her birthday, drastically changed his attitude and cut off the friendship with postings, e-mails, and messages calling the girl a ``fat ass" a ``whore" and that the ``world would be better off without her." The same day the girl hung herself in the closet

In Korea, the prosecution would likely prosecute and a judge would likely convict the wrongdoers in these cases. In the U.S. these evils acts will go unpunished. The dichotomy stems fundamentally from the different attitude towards speech, the right to privacy, and public morals.

Article 21(4) of the Korean Constitution states that ``Neither speech nor the press shall violate the honor or rights of other persons nor undermine public morals or social ethics." This limitation on the general right to speech and press, it is argued, allows the criminal punishment for even speech that is truthful.

The Korean Constitution, facially, balances the rights to free speech versus the privacy rights of the individual and public mores and social ethics. This inherent balance creates less protection for the freedom of speech than in the United States.

The First Amendment to the United States Constitution provides the protection for free speech. The First Amendment states that: ``Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

This Amendment has been interpreted as creating the near absolute level of protection for the freedom of speech. Justice Cardozo in Palko v. Connecticut states the reason in the United States for the near absolute protection of free speech.

Free speech is a ``fundamental" liberty, in part, because ``our history, political and legal," recognized ``freedom of thought and speech" as ``the indispensable condition of nearly every other form of freedom."

The conception is that the right to free speech is the very foundation of American society and without the right to free speech and free press other freedoms are necessarily inhibited. Thus, in the U.S. we place speech as the top in the hierarchy of rights and thus a balance between competing rights, usually, prevails in favor of speech

The best solution to this ``speech dilemma" I can't pretend to solve.

However, I believe most of us in America would rather hear of these terrible stories than have the government choose if speech violates ``the honor or rights of other persons" or ``undermine public morals or social ethics," since the government often gets its wrong, will use these balances to protect the interests of the vested elite, and will enforce law punishing speech in an inconsistent and in personally beneficial manner.

_____
SeanHayes@ipglegal.com

Brave New Judiciary

Brave New Judiciary

By Sean Hayes

Appeared in the Korea Times on December 19, 2007

Korea is presently preparing for the adoption of a jury system. The system will allow jurors to give an ``advisory opinion'' to the presiding judge.

After speaking to many judges and other legal professionals most believe that it is unlikely that a judge, except in the most extraordinary of cases, will stray from the decision of the jury. This may be attributable to the keen attention jury cases will receive in the media.

The system is a great step in the right direction and will play a significant role in: (1) acting as a check on government, (2) increasing civil participation, (3) promoting judicial independence, and (4) fostering more factually accurate decisions.

Check on Government

The renowned American Supreme Court Justice Byron White stated that, ``The jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power ― a reluctance to entrust plenary powers over life and liberty of the citizens to one judge or to a group of judges."

This American concern is increasingly becoming a concern for the Korean people. Often the Korean people believe that judges are too young, lack real world experience, and are incapable and sometimes unwilling, in certain cases, to decide based on their true ``free will.''

Thus, many NGOs have pushed to have jury trials in order to strip the prosecutor of the near absolute power to receive a conviction.

Civil Participation

Juries also promote participatory democracy and self-government by allowing the general population the opportunity to participate in the judicial process. A few years back Russia adopted a jury system since it believed that it needed to restore the public's confidence in the judicial system. This is the main, facial, reason why Korea is adopting the system.

Judicial Independence

A judge often comes under pressure from the population, more senior judges and ex-judges, law firms and the media. This pressure may eschew the outcome of a case and may also lead to a perceived destruction of the independence of the judiciary.

U.S. Federal Judge William Schwarzer has noted that, ``Even under the best of circumstances, a single judge making an unpopular decision comes under public and sometimes official criticism that may have adverse effects on his person, his family and his career.''

``Juries, being anonymous and out of the public eye as soon as the case is over, are well suited to decide controversial cases that could be difficult for judges to decide. And because they hold no office, have no other continuing connection with the government and have no political ambition, they are genuinely independent."

Factual Accuracy

A study by Dean Barnlund, on group dynamics, tested university students on their syllogistic reasoning skills. Barnlund paired the best individual reasoners singly against groups of the poorest reasoners.

When it came to dealing with syllogisms whose premises and conclusions were statements that created strong feelings and value preferences such as issues about communism, college school rules and unpopular wars, the best individuals did worse when pitted against the groups of the poor reasoners.

The explanation of the reason for this stems from the premise that an individual or very small group is misled by their emotional responses. The larger group is misled also, but the group, as a whole, was able to straighten itself out. The misled in the group were corrected or balanced out by others who had a different reaction.

Another study concluded by the preeminent legal scientist Fred Strodtbeck that the most important issue in finding the truth in a case is not education, but diversity.

The problem, he found, is that those that were judges lacked a sufficiently diverse social background because of their high level of education and high social status that they were more likely to come to an inaccurate conclusion compared to a jury with socially diverse individuals.

We should congratulate and welcome this brave step by the judiciary.

_____
SeanHayes@ipglegal.com

Dec 10, 2007

Education: Race to the Bottom

Education: Race to the Bottom

By Sean Hayes
Appeared in the Korea Times on 12/04/07

The Seoul government has finally realized that competition in education is not a bad thing. The present ``equality'' driven educational system has created a mere race to the bottom, while competition naturally leads to a race to the top.

Competition in all fields is natural and should be encouraged. The present system of assigning students to school based on a lottery and location creates the same problem as a business monopoly.

A monopoly will naturally provide a bad product, since there is little incentive to provide a good product. However, when the monopoly is broken by competition, the consumers will exercise their judgment in choosing the best product, thus forcing the former monopoly to provide a better product.

We must all remember the importance of the product at issue. Education is the very foundation of modern society. A good education imparts morality, culture, develops the ability to create and think, and allows the exploration of information that is needed to become productive adults and citizens.

However, parents realize that the Korean educational system has failed them and accordingly often choose to totally forego the Korean educational system by sending their children to foreign schools or to supplement formal education by after school education.

This is reflected in numerous statistics. The government spends 3.4 percent of gross domestic product (GDP) on education, while parents spend an additional 3 percent.

It is also estimated that parents spend about 20 percent of their monthly income on education for their children.

Realizing this problem, the Seoul government, from 2010, will allow students and parents to choose which high schools to apply to.

Younghoon High School is preparing for this change. They recently held a promotional event for students and parents. The event, as reported in this paper, was to showcase their unique educational environment, volunteer programs, and overseas study programs.

At present, most high schools are chosen for students based on their place of residence and a lottery system.

However, this step in the right direction does not go far enough. In a highly bureaucratized system with a powerful bureaucracy, an entrenched teachers' union, and a political system that is either incapable or unwilling to combat the system an expedient way to drastically change the very nature of education is to create and foster ``true'' private schools.

In Korea, most schools, public and private, are regulated to such an extent that they are a mere extension of the Korean government. This bureaucratizing of education has created the very race to the bottom we are all trying to lose.

In this system, few schools compete for students thus creating a system that is not rewarding schools for the quality of their educational product, but simply for their location and ability to abide by government mandates ― mandates that overwhelming have failed our students.

Hence, we must liberate our schools by allowing them to educate our students with the schools dictating who, what, when, where, and how including the price to charge, the teachers to hire, the curriculum to teach, and the students to choose.

The schools that are providing a superior educational product will rise to the top and the schools that wish to maintain the status quo will fail. This system may also provide an impetus for public schools to strive for excellence, since they too would need to compete for students.

In the U.S. research by Harvard economist Caroline Minter Hoxby indicates that incentive-based reforms have had greater success than changing the rules or increasing resources.

According too her study greater choice leads to higher student test scores, higher graduation rates and lower per-student spending.

Lets free our schools by allowing them to race to the top.

_____
SeanHayes@ipglegal.com

Nov 27, 2007

Uncaging Korean Tiger

Uncaging Korean Tiger
Appeared in the Korea Times on Nov. 28, 2007

By Sean Hayes

The Nordic Tiger has been uncaged. Iceland has joined Hong Kong, Russia, Georgia, Macedonia, Slovakia, Ukraine, and a number of other countries, by adopting a flat tax on individuals and also drastically cutting corporate taxes, estate taxes, and capital gains taxes.

Iceland has moved from a sleepy nation in the middle of the frigid North Atlantic to one of the world's richest nations. The drastic cut in taxes has unleashed the Nordic Tiger and now places Iceland 10th in the Economic Freedom of the World's rankings up from 26th in the 1990s.

The move from a ``progressive'' personal income tax, which penalizes the most productive, to a flat personal income tax, coupled with the drastic cut of the corporate tax rate from 50 percent in the late 1980s to 18 percent today has drastically increased the incentive to invest, create, and innovate, thus, boasting economic growth.

Additionally, Iceland has assisted in proving the ``Laffer Curve'' and supply-side economics. The decrease in corporate income tax created a drastic increase in tax revenues.

In the late 1980s, the corporate tax rate was 50 percent and the corporate tax revenues were only 0.9 percent of gross domestic product (GDP). In the mid-90s the corporate tax rate was 33 percent and the corporate tax revenues were only a little over 1 percent of GDP.

Today, with an 18 percent corporate tax rate, which incrementally decreased since the 1990s, the tax revenues are now nearing 50 percent of GDP.

Korea must follow our Nordic friend. The Korean Tiger has been caged by excess taxes, a regulatory regime that is more reminiscent of former communist China, than a democratic market economy, and a bureaucracy that rivals our communist neighbors.

Korea ranks 33rd on the Economic Freedom of the World rankings, but the rankings, for Korea, are a little skewed, since Korean ranks very high in access to sound money, but dismally low in all other areas because of its restrictive trade policy, enormous size of government, high tax rates, and over regulation of credit, business and labor.

The ranking system provides an excellent tool in providing a measurement of what degree of economic freedom nations in the world enjoy.

According to the rankings, the very cornerstone of economic freedom is personal choice, voluntary exchange, freedom to compete, and the security of personal property.

The survey, thus, evaluates 42 data points under the five broad headings: size of government: expenditures, taxes and enterprises; legal structure and security of property; access to sound money; freedom to trade internationally; and regulation of credit labor and business.

A high level of economic freedom, according to numerous peer-review studies, promotes economic prosperity, the protection of civil and political rights, national health, and environmental consciousness.

For example, those that rank at the top quarter of the rankings have an average GDP of $26,000 per capita compared to the bottom quartile with a $3,300 GDP and life expectancy in the top quartile is 78 years and only 56 years in the bottom quartile.

Those at the top of the survey include: Australia, Canada, Hong Kong, Ireland, New Zealand, Switzerland, U.K., the U.S., and our Nordic Tiger friend Iceland. Germany ranks 18th and Japan ranks 22nd.

All of these countries have high GDPs per capita, high life expectancies, high levels of protection of civil and political liberties and respect for our environment. Those on the bottom include mainly the poorest of the poor nations and include many African nations and dictatorial regimes.

Those just outside the top of the rankings comprise many countries such as Korea that are struggling to uncage the Tiger, because of a bureaucracy and a political and business elite that rely on the cage to maintain their present livelihood.

The only way for the Tiger to be freed is for the people to demand that their nation respect economic freedom and for the people to realize that high taxes, over regulation, a bloated bureaucracy, regulatory protections for the vested elite and punitive tariffs are stifling the potential of the Korean people.

The Korean Tiger, to reach its full potential, must be freed or the tiger will simply be a mere tool of the bureaucratic, political and business elite at the expense of the people.

_____
SeanHayes@ipglegal.com

Nov 26, 2007

Dismal Legal Education

Dismal Korean Legal Education

By Sean Hayes
Korea Times 11/20/2007

Korean lawyers are not meeting the expectations of Korean and foreign clients. The problem stems from the poor quality of education in general and legal education in specific.

Businesses in Korea know there is a problem. In a survey conducted a few years back, by Lexis-Nexis and the Korea Economic Daily, 97.3 percent of Korean companies stated that Korean law firms fall behind the world standard.

Lawyers, in Korea, know there is a problem. Chun Y. Yang, a lawyer at the largest law firm in Korea, stated in a speech that: ``Generally speaking, U.S. law practice is significantly more developed and sophisticated ... U.S. lawyers are expected and trained to think three, four steps ahead and be proactive ... The chances are average local Korean practitioners or even the relatively good ones will not be able to meet the high expectations of a U.S. client.''

President Roh Moo-hyun and the National Assembly know there is a problem. The Law School Bill states, ``Under the current system to nurture legal professionals, a gap exists between legal education and legal practices. Also the current system does not sufficiently nurture legal professionals who have expertise in preventing and addressing legal disputes. Therefore, the purpose of this amendment is to provide legal services which meet citizens' various needs by introducing a U.S.-style law school system.''

However, the majority of professors either don't know or don't care about the problem, since no significant change that seems to address these problems has been acknowledged or addressed during the law school application process.

Students and legal professionals including judges, prosecutors and attorneys nearly universally believe that professors need to stop lecturing and focus on nurturing critical thinking and logical reasoning skills by engaging students. However, they believe that most professors are incapable of teaching in any other way.

The reason most professors are unable to make any substantial change to teaching methods is because a majority of Korean professors have Ph.D.s or an S.J.D. The Ph.D. is earned within the presently flawed Korean system and an S.J.D. is a degree earned in the U.S, but is essentially a self-study degree, that is sold almost entirely to non-American students.

Those with these degrees comprise the vast majority of Korean professors. Most of these simply lecture, focus on theory that has little relationship to the practice of law and put little emphasis on building students reading, writing, speaking, research, logical reasoning and critical thinking skills.

These are also the people that the nation is entrusting their law schools to. My school, Kookmin University, and the rest of the schools will simply maintain the status quo. The teaching method is not even being discussed and, thus, the major benefit of the U.S. law school system will be lost.

If this is true the impending law school system will not ``nurture legal professionals'' and a ``gap between legal education and legal practice'' will still exist. I polled students at my school and only one professor, plus myself, regularly asks students questions and regularly uses real world examples in class.

Of course this professor was a former judge and sadly will reach his retirement age and will no longer teach at my school.

We need to either abandon the law school system, since continuing on this track will only cause more expense and time for students, or require at least all first year classes to be taught in the Socratic method and a majority of classes to focus on building reading, writing, speaking, research, critical thinking and logical reasoning skills.

All first year classes should be taught by professors with J.D.s, or professors that have been judges, since all J.D. students have been ``nurtured'' in the Socratic method, and all judges, because of their experience have the tools needed to quickly adapt to this method; while professors with S.J.D.s and Ph.D.s have had little to no exposure to the Socratic method and have caused and nurtured for decades the ``gap'' between ``legal education and reality'' and are overwhelmingly incapable of anything except lecturing.

If this is not done we will be discussing further changes for decades to come.

_____
SeanHayes@ipglegal.com

Nov 15, 2007

Korean Law School the Shakespearean Tragedy

Korean Law School the Shakespearean Tragedy

Appeared in the Korea Times on Nov. 16, 2007


Dear Professor Hayes: As a student of law I am very supportive of the law school system, since it may provide more opportunities to be an attorney, however, I highly doubt the system will create education that nurtures quality legal professionals. Why again are we going astray? Student at Kookmin University.

Dear Student: The Law School Bill declares, “Under the current system to nurture legal professionals, a gap exists between legal education and legal practices. Also the current system does not sufficiently nurture legal professionals who have expertise in preventing and addressing legal disputes. Therefore, the purpose of this amendment is to provide legal services which meet citizens’ various needs by introducing a U.S.-style law school system.”

The system will fail to meet the objective, since the implementation is comical at best and a Shakespearian tragedy at worst, since the Ministry of Education scoring system has little relationship to the objective, since they no idea of what the “gap . . . between legal education and legal practice is”; professors are unwilling and incapable of creating a system that will “nurture legal professionals who have expertise in preventing and addressing legal disputes”; and students are afraid to express to professors the need for change.

I have asked my students, legal professionals including judges, prosecutors, and attorneys what is needed in Korean legal education. The notion of most and when I press a little, all, is that the teaching method of professors needs to change. Professors need to teach in the Question and Answer Socratic Method.

In Korea, almost all professors simply lecture. Lectures are useless in “nurturing legal professionals” and are the reason for the “gap between legal education and legal practice.” I polled students at my school and only one professor, plus myself, regularly asks students questions and regularly uses real world examples in class. Of course this professor was a former judge and sadly will reach his retirement age and will no longer teach at my school.

The only solution to this Shakespearean tragedy is to require a large portion of professors to have J.D.s, or to have been judges, since all J.D. students have been “nurtured” in the Socratic Method and have the tools needed to “prevent and address” legal problems and all judges, because of their experience have the tools needed to quickly adapt to the Socratic Method, while professors with SJDs and PhDs had little to no exposure to the Socratic Method and have caused and nurtured for decades the “gap” between “legal education and reality.”

_____
SeanHayes@ipglegal.com

Oct 5, 2007

Korean Foreigner's land Aquisition Act (Enforcement Decree)

ENFORCEMENT DECREE OF THE FOREIGNER'S LAND ACQUISITION ACT


INTRODUCTION

Details of Enactment and Amendment

- Enactment: This Decree was enacted to prescribe matters delegated by the Act on the Acquisition of Lands by Foreigners and their Management (Act No. 4726, Jan. 7, 1994) such as the detailed standards for land for actual use that may be acquired by foreigners and the procedures for such acquisition as well as those necessary for the enforcement thereof following the enactment of the said Act. The formerly executed Enforcement Decree of the Foreigner's Land Acquisition Act (Cabinet Decree No. 645, Apr. 10, 1962) is repealed by the enactment of this Decree.
- Amendment: This Decree has arrived at its present form as a result of being wholly amended on June 24, 1998 and being partly amended on December 30, 2002 and March 17, 2004. Accordingly, its title was changed to the Enforcement Decree of the Foreigner's Land Acquisition Act, and the matters delegated by the Act and those necessary for the enforcement thereof have been prescribed for the promotion of foreign investment.


Main Contents

- This Decree prescribes that the area which requires exceptional permission for defense purpose before concluding land acquisition contract by foreigner should be the island area necessary for military purpose, which is announced publicly after consultation between the Minister of Construction and Transportation and the head of central administrative agency such as the Minister of Defense, etc.
- This Decree prescribes that the exercise of the repurchase right and the acquisition according to the final and conclusive judgement by a court should, in addition to the inheritance and auction, be added to matters subject to a report of land acquisition for any reason other than a contract.
- This Decree prescribes necessary procedures, etc. for filing a report, etc. of land acquisition by foreigners.




ENFORCEMENT DECREE OF THE FOREIGNER’S LAND ACQUISITION ACT

Wholly Amended by Presidential Decree No. 15819, Jun. 24, 1998
Amended by Presidential Decree No. 17854, Dec. 30, 2002
Presidential Decree No. 18312, Mar. 17, 2004



Article 1 (Purpose)
The purpose of this Decree is to provide for the matters delegated by the Foreigner’s Land Acquisition Act and matters necessary for the enforcement thereof.

Article 2 (International Organization Subject to Report on Land Acquisition Contract)
For the purpose of Article 4 (1) of the Foreigner’s Land Acquisition Act (hereinafter referred to as the “Act”), the term “international organization prescribed by the Presidential Decree” shall be as shown in the attached Table.

Article 3 (Report on Land Acquisition)
(1)Where a foreigner, a foreign government, or an international organization referred to in Article 2 (hereinafter referred to as a “foreigner”) intends to report on the acquisition or continuous holding of land under Article 4 (1), 5, or 6 of the Act, he shall submit to the head of Si/Gun/Gu (referring to an autonomous Gu; hereinafter the same shall apply) a report accompanied by the documents prescribed by the Ordinance of the Ministry of Construction and Transportation.
(2)Where a foreigner intends to obtain permission for the acquisition of land under Article 4 (2) of the Act, he shall submit to the head of Si/Gun/Gu an application accompanied by the documents prescribed by the Ordinance of the Ministry of Construction and Transportation.
(3)The head of Si/Gun/Gu shall, upon the receipt of application for permission on the acquisition of land under paragraph (2), make a disposition of permission or no permission within 15 days from the day of the receipt of the application.

Article 4 (Management of Report on Acquisition of Land)
(1)Where the head of Si/Gun/Gu delivers a certificate of complete report under Article 3 (1) or a permit under paragraph (3) of the same Article, he shall record and manage such facts in a management register.
(2)The head of Si/Gun/Gu shall notify the Special Metropolitan City Mayor, Metropolitan City Mayor, or Do governor of the contents of the management register under paragraph (1) within one month of the closing day of every quarter.
(3)The Special Metropolitan City Mayor, Metropolitan City Mayor, or Do governor who has been notified of the contents of the management register under paragraph (2), shall notify the Minister of Construction and Transportation of such contents within one month of the receipt day of such notification.

Article 5 (Other Permission Areas of Acquisition of Land)
For the purpose of Article 4 (2) 1 of the Act, the term “areas prescribed by the Presidential Decree” means island areas necessary from the military point of view which are announced by the Minister of Construction and Transportation after consultation with the head of a central administrative agency concerned, such as the Minister of National Defense.

Article 6 (Acquisition of Land Caused by Reasons Other Than Contract)
For the purpose of Article 5 of the Act, the term “cause other than contracts prescribed by the Presidential Decree” means the excercise of a redemptive right pursuant to the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor or other relevant Acts, or a final and conclusive judgment by a court.

Article 7 (Procedure for Imposition and Collection of Fine for Negligence)
(1)Where the head of Si/Gun/Gu intends to impose a fine for negligence under Article 9 (1) and (2) of the Act, he shall, after investigation and confirmation of the offense, notify the party subject to the fine for negligence with documents specifying the offense and the amount of the fine for negligence.
(2)Where the head of Si/Gun/Gu intends to impose a fine for negligence under paragraph (1), he shall give the party subject to the fine for negligence an opportunity to state his opinions orally or in writing (including electronic documents), with a fixed period of not less than 10 days. In this case, if he fails to state his opinions within the specified period, he shall be considered to have no opinion.
(3)The head of Si/Gun/Gu shall determine the amount of a fine for negligence taking into consideration the motives and consequences of the offense.
(4)The procedures for the collection of a fine for negligence shall be determined by the Ordinance of the Ministry of Construction and Transportation.



ADDENDA


Article 1 (Enforcement Date)
This Decree shall enter into force on June 26, 1998.

Article 2 Omitted.













ADDENDA


Article 1 (Enforcement Date)
This Decree shall enter into force on January 1, 2003.

Articles 2 through 8 Omitted.











ADDENDUM


This Decree shall enter into force on the date of its promulgation.


[Table]

International Organizations (Related to Article 2)

Classification
International Organizations's Name

United Nations and its subsidiary organs or specialised agencies
- United Nations (UN)
- United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP)
- United Nations Development Programme (UNDP)
- The United Nations Population Fund (UNFPA)
- United Nations Industrial Development Organisation (UNIDO)
- United Nations University (UNU)
- United Nations Volunteers (UNV)
- World Food Council (WFC)
- World Food Programme (WFP)
- Food and Agriculture Organization of the United Nations (FAO)
- FAO/WHO Codex Alimentarius Commission (CAC)
- International Civil Aviation Organization (ICAO)
- International Fund for Agricultural Development (IFAD)
- International Labour Organization (ILO)
- International Maritime Organization (IMO)
- International Telecommunication Union (ITU)
- United Nations Educational, Scientific and Cultural Organization (UNESCO)
- Universal Postal Union (UPU)
- World Health Organization (WHO)
- World Intellectual Property Organization (WIPO)
- World Meteorological Organization (WMO)
- International Atomic Energy Agency (IAEA)

Intergovernmental organizations
- Asian-African Legal Consultative Committee (AALCC)
- Afro-Asian Rural Reconstruction Organisation (AARRO)
- Asian Pacific Development Center (APDC)
- Asian Productivity Organization (APO)
- Asia and Pacific Plant Protection Commission (APPPC)
- Asian Pacific Postal Training Centre (APPTC)
- Asian Pacific Postal Union (APPU)
- Asia-Pacific Telecommunity (APT)
- Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR)
- Centre on Integrated Rural Development for Asia and the Pacific (CIRDAP)
- Eastern Regional Organization for Public Administration (EROPA)
- International Bureau of Education (IBE)
- International Bureau of Weights and Measures (IBWM)
- International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM)
- International Civil Defence Organisation (ICDO)
- International Hydrographic Organization (IHO)
- International Mobile Satellite Organization (INMARSAT)
- International Telecommunications Satellite Organization (ITSO)
- The Intergovernmental Oceanographic Commission (IOC)
- Office International des Epizooties (OIE)
- International Organization of Legal Metrology (IOLM)
- International Organization For Migration (IOM)
- International Poplar Commission (IPO)
- Indo-Pacific Fisheries Commission
- International Whaling Commission (IWC)
- Southeast Asian Ministers of Education Organization (SEAMEO)
- International Institute for the Unification of Private Law (UNIDROIT)
- World Trade Organization (WTO)
- World Customs Organization (WCO)
- Organisation for Economic Co-operation and Development (OECD)

Quasi-intergovernmental organizations
- Asian Organisation of Supreme Audit Institutions (ASOSAI)
- International Military Sports Council (CISM)v
- International Association of Ports and Harbors (IAPH)
- International Council on Archives (ICA)
- International Committee on the Military Medicine (ICMM)
- International Criminal Police Organization (ICPO-INTERPOL)
- International Electrotechnical Commission (IEC)
- International Organisation of Supreme Audit Institutions (INTOSAI)
- International Organization for Standardization (ISO)
- World Conservation Union (IUCN)
- International Union of Local Authorities (IULA)
- The International Navigation Association (PIANC)


_____
SeanHayes@ipglegal.com

Oct 4, 2007

Inside the Constitutional Court of Korea

Korea Times 10/04/2007
by Sean Hayes

Dear Professor Hayes: I am studying Korean Law at SNU as an exchange student. I am wondering what is the difference between the function of the Supreme Court and the Constitutional Court and which court is the higher court. Student at SNU

Dear Student at SNU: Since the commencement of my relationship with the Court in 1999, I have noticed a drastic increase in foreigner's awareness of the Constitutional Court. News stories have been published in all major foreign publications, visitors from around the world have visited the Court, numerous law review articles have been printed in foreign journals and the Court justices and researchers have attended and actively participated in conferences throughout the world. Next week the Court will even host the 5th Conference on Asian Constitutional Court Justices.

Some, including myself, have noted that the Korean Constitutional Court is one of or maybe even the only court in Asia that has true power to declare law unconstitutional. The reason for this power stems, at least partially, from the institutional respect that people have in the Court. According to a poll by a local vernacular the Court is the most respected government institution in Korea.

Student at SNU, to answer your question, the Court is a court of limited jurisdiction. The Constitution's article 111 creates the jurisdiction of the Court. The court may hear cases concerning: the constitutionality of statutes upon the request of the ordinary courts; impeachment; dissolution of a political parties; competence disputes between state agencies, between a state agency and a local government, or between local governments; and constitutional complaints filed directly to the Court challenging the face of law.

The Court thus may only hear the aforementioned cases and the ordinary courts may hear all other cases. Thus, neither court is a higher court; simply, each court has its own role in the system.

However, the Constitutional Court hears cases with more significance to the nation. For example, the Court ruled not to remove the current president after the National Assembly voted to impeach him; that the bill to move the nation's capital, supported by the current president, was unconstitutional; that numerous laws restricting the right to speech and assembly were unconstitutional; that laws not providing "just compensation" for expropriation, use or restriction on property were unconstitutional; that laws limiting the access to an attorney were unconstitutional.

These cases along with the over 450 cases declaring law unconstitutional or non-conforming to the constitutional have assisted in moving Korea from authoritarian rule to constitutional democracy.

_____
SeanHayes@ipglegal.com

Oct 3, 2007

Sean Hayes: First expat in Korea’s constitutional court

First expat in Korea’s constitutional court
Korea Times 2003.04.17

In a homogenous society like Korea, one may suspect the Constitutional Court, one of the nation’s highest constitutional bodies representative of the people, to be homogeneous as well. But when all the members of this exclusive organization gather together, a discrepancy is hard to miss.

Meet Sean Hayes. He is the first and only foreigner ever hired by the Court. He is also its youngest member.


Sean Hayes is The Korea Herald`s new face in legal advice starting next week in a column called "Legal-Ease."

Ten months ago, he assumed the role of a Constitutional Research Officer (CRO), a position appointed by the president of the Constitutional Court. CROs bear the important responsibility of conducting investigations and research concerning the adjudication of cases under the direction of the Constitutional Court president.

“I am not only honored to have been employed by the president of this Court, but I feel a strong obligation to [him], to the Korean legal system, and to the citizens of Korea,” he said.

As an American, Hayes specializes on researching Korean law in comparison with American law. And as the first foreign CRO, the 30-year-old says he is expected to bring a more diverse background to the Court. For instance, in addition to his regular duties, he teaches constitutional law and helps his colleagues to research and understand American constitutional law.

In Korea, CROs are licensed attorneys, judges, prosecutors or former tenured university professors.

Qualifications for a CRO are prescribed by the Constitutional Court Act, which states that there is also a preference for the Court to hire CROs from other state agencies, such as judges and prosecutors.

Although Hayes is a foreigner with a foreign law license, he works under the same conditions as his Korean colleagues. For instance, Hayes will keep his post until the Court’s president dismisses him. But foreign CROs dispathed by state agencies stay for a fixed period of two years.

Hayes may not have lived in Korea for that long, but he considers it his home. Having a career in constitutional law here, an area he has had an interest in since his schooldays, has helped him feel even more at home. He says he hopes to help the foreign community in Korea feel at home too.

“I feel very privileged to work for the Court. [It] is playing an active part in insuring the fundamental rights of Koreans and foreigners alike,” he said.

Hayes’ affinity for the Constitutional Court of Korea can be traced back to his sojourn to Korea in 1997.

He said it was by “fluke” that he discovered Korea, just when he was growing weary of his job as a stockbroker in the United States. One day, he happened to come across a brochure promoting various opportunities abroad, one of which was to teach English at Chungnam University in Daejon, he explained. For one year, he did just that, before leaving for law school in 1998. The job proved to be a great way to travel, prepare for law school and work, he said.

As he pursued a J.D. (Juris Doctor) degree at Quinnipiac University in Connecticut, he maintained ties with Korea as he nurtured a background in Korean law. During his first year of law school, he spent the summer studying Korean law at Kookmin University. He also interned at the Constitutional Court of Korea for two summers while in law school.

Such an opportunity inspired Hayes to seek a position at Korea’s Constitutional Court upon completing his degree in 2002, he said. He sees it as a way of fostering a stable society, while strengthening the Court’s contribution to the constitutional adjudication of the world.

“Many foreign Courts are looking to the opinions of the [Korean Constitutional Court] for guidance,” he noted. This weekend, judges, lawyers, and prosecutors from over 25 different countries will visit Korea to learn about the successes of its Court. He said he and another research officer are giving a speech at the convention.

Since the Court’s foundation in 1988, it has ruled almost 400 laws unconstitutional, whereas before 1988, only a handful of laws were deemed unconstitutional. Hayes said this reflects the active role the Court has played in Korea.

He emphasized that its active role in society has significantly contributed to the protection of such fundamental rights as freedom of speech, equal protection, the right to property, the right to due process and the right to work.

“I am very proud to work for an institution that is positively affecting the lives of Koreans and foreigners,” he said.

His helping hand will further reach out to the expatriate community through his weekly column in the Weekender section of The Korea Herald. Titled “Legal-Ease,” the column offers legal advice to expats on various issues concerning immigration, driver’s licenses, work visas, buying homes, auto insurance and worker’s rights, among others.

“It’s hard [for foreigners] to get access to information here. The column will cover questions most of them can’t find answers to,” Hayes noted. “Through this job here, I will be helpful to expats.”


By Yoo Soh-jung Staff reporter (sohjung@koreaherald.co.kr)

2003.04.17

_____
SeanHayes@ipglegal.com

Sep 28, 2007

Enforcement of Foreign Judgments in Korea

Enforcement of Foreign Judgments in Korea

Appeared in the Korea Times on September 22, 2007
by Sean Hayes


Dear Professor Sean Hayes: I have a judgment in a New York court against a Korean importer. I shipped my goods to the company and the company refuses to answer my calls, e-mails, and letters. I sued and won a default judgment in a New York court. No assets were found in the U.S. I believe they have assets in Korea. How can I enforce the judgments? / Cashed out in New York.

Dear Cashed out in New York: A Korean court should enforce your judgment. Most foreign commercial judgments are enforced with little difficulty. The situation, however, is sometimes more complicated when family law matters are concerned.

A Korean court requires proper service of process under the Hague Convention, that the New York court had jurisdiction over the dispute, that the New York courts enforce Korean judgments (reciprocity), and also that the judgment is not contrary to Korean "public order and good morals." Often snags occur during the enforcement of family court judgments because of the courts sometimes-conservative stance on divorce and custody.

Also, a Korean court is sometimes leery of enforcing a default judgment, since the Korean party has not had the opportunity to appear and state his case. This sometimes leads to the foreign party being required to sue in a Korean court _ a process that is often less time-consuming and costly than in New York.

Normally, it is advisable to first obtain a preliminary attachment and then file to enforce the New York judgment if the company is not a well-established company, since I all too often hear of cases where a company, in a troubled financial state, quickly spends down assets in order to avoid outstanding debts.

When navigating the enforcement of judgments in Korea a competent firm with significant experience handling foreign clients is needed. In order to save on legal fees the large firms are unadvisable to employ. The smaller firms do as good of a job and I believe even better job at a much lower cost. Most of the lawyers from the smaller firms have significant experience working at large firms and can handle 99 percent of the cases as well as the larger firms. The larger firms should only be employed in the most complex cases concerning highly specialized areas of law.

_____
SeanHayes@ipglegal.com