Severance Payment or Retirement Pension? When You’re Working for Korean Private School

Recently I got an email question from a foreign teacher in certain Korean private university.  He’s wondering why the university is insisting on retirement pension plan instead of severance payment.

There is an act called Pension for Private Teachers and Staff Act(PPTSA) in Korea, which regulates severance payment issues in private school.  As a matter of law, PPTSA is applied prior to the GWRBA(Guarantee of Workers’ Retirement Benefits Act) and it allows the private schools to set a retirement pension plan for its employees.

With respect to the relationship between the employment contract and the pension plan under PPTSA, Private Universities usually, pursuant to the PPTSA, put the retirement pension clauses, instead of severance payment, in the Rules of Employment(RE) of its own.  As a matter of law, the RE is applied to all the workers in a workplace.  That means, if there exists

Severance Payment Plan & Retirement Pension Plan under Korean Labor Law, and Government’s Proposal to Amend Current Sevrance Payment System

Recently we got a question from a gentleman asking what the exact meaning of the below, an Internet post he’d found:

“It is possible that as of 2011, what was severance pay will be vested in the country’s pension plan. This means that workers (including teachers, etc.) will no longer receive one month’s pay for every year worked at the end of their contract. The legislation is set to discuss/vote on this in 2009.”

He was worrying that he might lose his right of severance payment under Korean law.  But the above article is quite misleading.  The severance payment is the property right of workers.  It can not be vested to anything without workers’ consents.  If the article says the amended law will give the employer or any party but the workers the power to vest the severance payment to country’s pension plan (or whatever) without workers’ consents, it definitely violates

Introduction to the Severance Payment Under Korean Labor Law

We’ve been frequently asked about the Severance Payment under Korean labor law.  Basically, the severance payment is being regulated by the Guarantee of Workers’ Retirement Benefits Act(“GWRBA”), not by Labor Standard Act(“LSA”).  (Some Korean law related sites refer to LSA as it regulates the severance payment issue, but it is wrong)

GWRBA shall be applied to all businesses and workplaces regardless of the number of employees.  GWRBA provides for the minimum amount of severance payment which every employer would be required to pay to a retiring or resigning employee.

Having said the above, it is noted that under GWRBA basically an employee is entitled to receive severance payment at the rate of 30 days’ “average wage” for each “continuous year of service.”

When calculating the amount of “average wage”, base salary and other payments such as overtime payment, position allowance, incentive allowance paid to all employees to

Having No Working Visa Does Not Mean You Have No Right Under Korean Civil and Labor Law

Recently a foreigner asked some questions to us regarding employment issues.  He has a problem in his Visa status here in Korea and the employer refused to pay some amount to him, a matter of quite frequent occurrence here in Korea, which I’m afraid of though.

Basically foreigners have the same rights as Koreans under Korean civil and/or labor law. Even though the employee does not  have a valid working Visa, it does not hinder him or her from executing his or her right under Korean law.

If the company has no right to withhold the money earned by the model, it constitutes a breach of contract and/or a unlawful act.  The employee can file a lawsuit or request a preliminary injunction against the company and his assets.

Please be noted, however, that the company could threaten the employee saying “Unless you keep quiet, I’ll inform the Immigration office of your illegal stays in Korea and make you expelled!” as is often the case with vicious small entrepreneur in Korea.  Practically it is the primary reason that makes many foreigners working without visa hesitate to take legal

How to Cope with Harassment or Stalking under Korean Laws

Recently I got a question from a foreigner.  She was wondering if she could take any legal actions against her Korean ex-employee who harassed her by stating false information about her and telling her customers not to do a business with her.

From a perspective of Korean Criminal law, currently there is no general law on harassment or stalking thing.  The respective laws have its own regulations on which behavior constitutes a certain crime is not.

Generally speaking, A person who defames another by publicly alleging facts (false or not) shall be punished by imprisonment or imprisonment without prison labor for not more than two years or by a fine not exceeding five million won.  Also, if the ex-employee’s act can be interpreted as he interfered with her business by circulating false facts or through fraudulent means, or by the threat of force, it constitutes a crime of interference of business and he shall be punished by imprisonment for not more than five years or by a fine not exceeding fifteen million won.  Also she might request for compensation or damage resulted from his unlawful acts.  Provisional disposition for prohibition of approach could be applied in Korea.  However these shall be considered further with more accurate information provided.

So, in a legal standpoint, she may warn him to stop doing that kind of act or he’ll be in a danger of being charged in Korea.  In this case send the warning letter in the name of Korean lawyer is strongly recommended. It is not hard to see, in Korea, people stop violating one’s legal right after receiving a lawyer’s warning letter and recognizing illegality of his or her behavior.

Also please make sure to gather and file every evidence of the person’s illegal acts preparing for possible legal disputes in Korea.

© 2008 Wonil Chung, a Korean Criminal Lawyer/Chung & Partners, a Korean Criminal Law Firm.  All rights reserved. Some copyrights, photos, icons, trademarks, trade dress, or other commercial symbols that appear on this post are the property of the respective owners.

Can an Employment Contract Entered in South Korea Exclude a Jurisdiction of Korean Court?

Recently I got a question about a jurisdiction of legal dispute arising of a labor contract made between a Korean company and a foreigner here in Korea.  The foreigner told me his contract had a exclusion clause which ruled out the jurisdiction of Korean court.

According to Article 2(1) of the Private International Act, a Korean court shall have the jurisdiction over an international trial in the case where the parties or the issue has substantial relation to South Korea, and according to Article 28(5) of PIA, the parties of an employment contract may make an agreement on the international jurisdiction only in cases where a dispute has already occurred or an employee is allowed to bring a lawsuit to a court in addition to the governing court in accordance with the PIA.

So even if parties of an employment agreement had agreed to rule out the jurisdiction of Korea n court before a dispute occurred, such agreement violates the PIA, so it has no effect under Korean law.

© 2008 Wonil Chung, a Korean Labor Lawyer/Chung & Partners, a Korean Labor Law Firm.  All rights reserved. Some copyrights, photos, icons, trademarks, trade dress, or other commercial symbols that appear on this post are the property of the respective owners.

What constitutes a “Sexual Harassment” under Korean Law?

Recently I got a question about the definition of “sexual harassment” under Korean law.

Article 3-4 of The Framework Act on Women’s Development defines a “Sexual Harassment” as “sexual comments and behaviors incurring sexual mortification and repugnance, or giving disadvantages in employment for not accepting sexual advances or other request, on the part of employees in public sector, employers, or workers, using their status or job position related to jobs or employment relations, etc.”.

In order to be constituted as sexual harassment, the person does not necessarily have to have sexual motive or intent, however, it has to be proved that considering concrete situation such as relationship with the person, place and circumstance of the behavior, content of the clear and referred response of the behavior, content and degree of the act, whether the act is ephemeral or short-timed or continual. There must be acts that provoke sexual mortification and repugnance to average person who are in the similar situation generally, and from that the average person should feel the sexual mortification and repugnance. Therefore, sexual harassment can not be constituted not merely for the reason that counterpart felt sexual mortification and repugnance without provoking sexual mortification and repugnance to average person in the similar situation objectively.

Based on this standard, the Supreme Court have held the fact that vice principle of elementary school recommended a female teachers to serve alcohol to him twice at their mess does not constitute a sexual harassment considering the nature of the mess, relationship between participant, place, and actual intent(2005du6461).

© 2008 Wonil Chung, a Korean Litigation Lawyer/Chung & Partners, a Korean Litigation Law Firm.  All rights reserved. Some copyrights, photos, icons, trademarks, trade dress, or other commercial symbols that appear on this post are the property of the respective owners.