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formerly executed Enforcement Decree of the Foreigner's Land Acquisition Act (Cabinet Decree No. 645, Apr. 10, 1962) is repealed by the enactment of this Decree.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)


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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.

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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

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SeanHayes@ipglegal.com