93 Professionals Named National Leaders in WWL: Korea 2021
In the 2021 edition of Who’s Who Legal: Korea, 93 attorneys, patent attorneys and certified public accountants from Kim & Chang were named “National Leaders.”
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Newsletters VIEW MORENewslettersKim & Chang Legal Newsletter (2021 Issue 2) This issue includes: Amended Case Handling Rules and Consent Decree Rules Take Effect Introduction of Revised IBA Rules on Taking of Evidence in International Arbitration Obligations Regarding Workplace Harassment Reinforced with Amendment to LSA Comprehensive Amendment to E-Commerce Act Proposed Amendment to FSCMA on Private Fund Regulations Regulators to Reform Suspension Rules Regarding Licensing Applications Act on Supervision of Financial Conglomerates Taking Effect Proposed Amendment to Insurance Business Act on Short-Term Micro-Insurance Implication of Korea Customs Service’s Reorganization Amendments to Notification on Operation of Customs Valuation US Agrees to Discussion on Partially Waiving Intellectual Property Rights to Respond to COVID-19 New Provisions Against Misappropriation of Business Ideas Added to Unfair Competition Law Legislative and Regulatory Updates on Online Platforms, AI and OTT Services MOE Announces Carbon Neutrality Implementation Plan to Achieve Carbon Neutrality by 2050 Major Changes in Product Packaging and Recycling Regulations Supreme Court Finds Termination Based on Poor Performance Reasonable Kim & Chang Legal Newsletter (2021 Issue 2) .content_view .view_area a { text-decoration: none; } .content_view .view_area ul li:before { top: 11px; }2021.06.29
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Newsletters VIEW MORENewslettersProposed Enforcement Decree of Serious Accidents Punishment Act – Summary of Key Contents Serious Industrial Accidents Category (Corresponding Article of Serious Accidents Punishment Act ("SAPA")) Key Contents of Proposed Enforcement Decree of SAPA (the “Enforcement Decree”) Scope of “Occupational Illness” (Article 2, Item 2.C) SAPA definition of “Serious Industrial Accident”: During any given year, three or more persons suffer from an “Occupational Illness” due to the same risk factor - Scope of “Occupational Illness” enumerated in Attachment 1 of the Enforcement Decree Establishment and Implementation of Safety and Health Management System (Article 4 (1) 1) Eight Key Action Items Set the safety and health target and management policy for businesses and workplaces Establish work protocol which can check, confirm and improve hazard/risk factors, taking into account the specific attributes of the workplace and tasks, and check the status of its implementation Place a sufficient number of professional safety and health personnel, and support them to carry out their tasks Allocate a budget sufficient to secure personnel, facility and equipment related to safety and health every year, and establish a system to ensure that the budget is appropriately spent and managed For businesses or workplaces with 500 or more employees (construction companies whose construction capability is within the top 200 companies), create an organization that exclusively handles safety and health-related work Obtain workers’ opinions at least once every quarter, and make necessary improvements Prepare a response plan in case of an imminent risk of a serious industrial accident (e.g., work suspension, evacuation, reporting and removal of risk factor), a relief plan to address a serious industrial accident, and procedures for prevention of additional harm and reporting protocol. Check and verify status at least once every six months. Prepare evaluation standards and a procedure to confirm the following in case of subcontracting, service or entrustment arrangements, and check/confirm the status of implementation: Capability and skills of subcontractors, service providers and entrustees to prevent accidents Appropriate expenditures being borne by subcontractors, service providers or entrustees relating to safety and health. Managerial Measures Necessary to Satisfy Obligations Under the Safety and Health-Related Laws (Article 4 (1) 4) “Safety and Health-Related Laws” refer to the laws related to the safety and health of “Workers,” which are applicable to the relevant business or workplace. Three Key Action Items Receive a report on the results of inspection on whether the obligations under the Safety and Health-Related Laws are satisfied, at least once every six months (this can be entrusted to a third party designated by the Ministry of Employment and Labor). Based on the report, arrange personnel so that they can satisfy the obligations under the Safety and Health-Related Laws, and allocate/expend additional budget, etc. Confirm whether safety and health training was conducted to address harmful or otherwise dangerous tasks, and take necessary measures (e.g., secure additional budget). Serious Public Accidents (Raw Materials or Products) Category (Corresponding Article of SAPA) Key Contents of Enforcement Decree Establishment and Implementation of Safety and Health Management System (Article 9 (1) 1) Verify appropriate staffing in terms of number of safety and health personnel in accordance with applicable laws to ensure adequate assignment of tasks to prevent serious public accidents. Review whether sufficient budget is allocated to maintain safety and health personnel, facilities and equipment under applicable laws, and ensure that the budget is expended appropriately. In the case of raw materials and products set forth in Table 5, prepare and implement a work handling process, which include the following: Matters related to identification and inspection of hazard/risk regarding raw materials and products Matters related to reporting, request for response measures and improvement thereof in case of finding hazard/risk regarding raw materials and products Matters related to the reporting process in case of a serious public accident, measures to prevent additional damages, and improvement measures based on a cause analysis. [Raw Materials and Products for Which Work Process Procedure Must Be Prepared (Table 5)] 1. Toxic gases, 2. Agricultural pesticides, natural plant protection agents, and equipment that utilizes agricultural pesticide, 3. Narcotics, 4. Fertilizers, 5. Active substances and biocidal products, 6. Foods, food additives, tools, containers, and packaging, 7. Drugs, quasi-drugs, and drugs/quasi-drugs for animals, 8. Radioactive substances, 9. Medical devices, 10. Explosives, 11. Accident-prone substances, and 12. Other equivalent raw materials and products that are harmful to life and/or body. Check and verify matters listed under Items 1 and 2 (appropriate organization and budget) at least twice a year and take necessary measures such as securing additional personnel and/or budget. Managerial Measures Necessary to Satisfy Obligations Under the Safety and Health-Related Laws (Article 9 (1) 4) “Safety and Health-Related Laws” refer to "laws which are applicable to raw materials and/or products produced, manufactured, sold and/or distributed by the relevant business or workplace, and are related to the prevention and safe management of hazard/risk factors that the raw materials and products may have on human life and body." At least once every six months, check (or receive a report on) whether the obligations under the Safety and Health-Related Laws are satisfied, and take necessary measures such as securing additional personnel and/or budget (this can be entrusted to a third party expert). Check (or receive report) whether training was conducted to satisfy the obligations under the Safety and Health-Related Laws, and take necessary measures such as conducting additional training. Serious Public Accidents (Public Facilities and Public Transportation) Category (Corresponding Article of SAPA) Key Contents of Enforcement Decree Scope of Public Facilities (Article 2, Item 4) Facilities, structures, and business sites, which are deemed to be public facilities, are specifically stipulated. “Other equivalent facilities” include gas stations (with a footprint of at least 2,000m2), amusement facilities (e.g., amusement parks), bridges, and tunnels that were built more than ten years. Establishment and Implementation of Safety and Health Management System (Article 9 (1) 1) On an annual basis, check (or receive a report on) the following matters to ensure that a sufficient number of safety and health personnel was assigned to prevent serious public accidents: the number of personnel necessary to implement a safety plan, and whether such personnel have been allocated whether tasks were properly assigned to safety and health personnel. On an annual basis, check (or receive a report on) the following matters to ensure a safety/health-related budget is sufficiently allocated and executed to prevent serious public accidents: the size of the budget necessary to implement a safety plan, and whether such budget was allocated whether the safety/health-related budget was expended in accordance with its purpose. Ensure that a safety plan, which includes the following, is established and implemented every year: Matters related to establishing organizations and securing personnel, etc. necessary to maintain and manage safety Matters related to conducting safety inspection or detailed safety assessment and inspection/maintenance Matters related to maintenance such as repairs. Check whether annual safety inspection is properly conducted. Ensure that a crisis management plan is established, which includes the following: Matters related to confirmation, inspection, and mitigation of hazard/risk factors Matters related to reporting, request for response measures, and improvement thereof in case of finding hazard/risk factors Matters related to emergency response measures, measures to prevent additional damages, reporting to relevant government authority, and improvement measures in case of serious public accident Matters related to safety exercises (e.g., evacuation drills) in case of emergency. Check and confirm Items 1 through 4 above at least once every six months and take necessary measures such as securing additional personnel and/or budget. Take necessary measures in case of finding hazard/risk factors (e.g., request for improvement/repair and restriction on usage). In case of subcontracting, entering into service agreement or entrustment to a third party in connection with operation or management of facilities, check the following and take necessary measures to secure safety of users: capability of third party with respect to safety management and taking accident prevention measures payment of adequate fees to ensure safety of users. Managerial Measures Necessary to Satisfy Obligations Under Safety and Health-Related Laws (Article 9 (1) 4) “Safety and Health-Related Laws” refer to “laws applicable to the relevant public facilities and public transportation, and related to the protection of safety and health of users.” At least once a year, check (or receive a report on) whether the obligations under the Safety and Health-Related Laws are satisfied, and take necessary measures (this can be entrusted to a third party designated by the Ministry of Land Infrastructure and Transportation). At least once a year, verify (or receive report) whether either a safety manager or manager in charge of repair/inspection completed the necessary training. .content_view .view_area ul li:before { top: 13px; }2021.07.14
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Newsletters VIEW MORENewslettersUpdate on HR/Labor Law Amendments On April 29, 2021, a total of eight proposed amendments to labor-related laws, including the Labor Standards Act (the “LSA”), were approved in the plenary session of the National Assembly and were promulgated into law on May 28, 2021 (collectively the “Amendments” and “Amendment” singularly). Different effective dates have been specified for the Amendments, as some are expected to take effect immediately, while others are granted a one-year grace period. In addition to the introduction of regulations imposing criminal sanctions for violations, the Amendments include several issues that companies should note with regard to HR management, such as the duty to issue a wage statement and the duty of safety managers and health managers. In this regard, we provide further guidance for companies on the Amendments as follows: Key Changes to the LSA (Effective from November 19, 2021) Provisions have been added to the law to allow the Labor Relations Commission (the “LRC”) to issue an order of remedy even for an employee whose fixed-term employment has expired or who has reached the age of retirement. Accordingly, even in cases where it is not possible for the company to reinstate the employee to his or her former position, the LRC may issue a relief order requiring the employer to pay money and valuables equivalent to wages that the employee concerned would have received during the period of dismissal. The upper limit of the penalty for non-compliance with the LRC’s relief order, which was KRW 20 million for each occurrence of non-compliance (which can be levied up to four times in total), has now been increased to KRW 30 million (with no change to the frequency). In addition, when wages are paid to employees, the LSA was amended to introduce an obligation on the company to issue a wage statement to employees either in writing or electronically, specifying the matters prescribed by the Presidential Decree, such as wage items and calculation method. Key Changes to the Equal Employment Opportunity and Work-Family Balance Assistance Act (the “Equal Employment Act”) New provisions have been added to expand the reasons for childcare leave by pregnant employees. In the past, childcare leave was allowed only for employees who had children aged eight or younger or in the second grade or lower. However, the amendment expands the scope of eligibility for granting childcare leave to female employees who are pregnant so that they may use childcare leave if they have a risk of miscarriage or stillbirth. Also, the current law enables employees to split childcare leave up to two periods, but under the Amendment, the childcare leave that a pregnant employee uses for maternity protection will not be subject to the split limit. This Amendment will take effect starting November 19, 2021. The law has also been changed to introduce relief measures with the LRC for violations of the Equal Employment Act, enabling the LRC to issue corrective orders to cease discriminatory acts, improve working terms and conditions, and award appropriate compensation. Furthermore, this Amendment provides additional regulations prohibiting disadvantageous treatment of employees who file a request for relief (criminal liability upon violation thereof) and imposing fines for violating the confirmed corrective orders. This Amendment will take effect from May 19, 2022. Key Changes to the Industrial Accident Compensation Insurance Act (Effective from January 1, 2022) Provisions requiring advance payment of funeral expenses have been added, allowing employers to pay funeral expenses in advance at the request of the bereaved family if the employee concerned is presumed to have died in the performance of his or her duties. Under this Amendment, in cases where an employee who suffered an industrial accident requires a long-term medical treatment or is expected to have a disability thereafter, the Korea Workers’ Compensation and Welfare Service may request the employer to prepare and submit a reinstatement work plan with respect to the said employee. And accordingly, a new system to support the return-to-work of employees by the Korea Workers' Compensation and Welfare Service has been established, which support is to be based on the reinstatement work plan submitted. Key Changes to the Occupational Safety and Health Act (the “OSHA”) (Effective from November 19, 2021) Under the current OSHA, there is no provision restricting safety managers from concurrently serving as health managers and vice versa. However, the amended OSHA requires employers of workplaces which fall under the size of a workplace prescribed by the Presidential Decree to have safety managers and health managers exclusively responsible for their designated duties. In case where a service recipient company and a service providing company perform work in the same location, the service recipient company is obligated to check the time and details of work and safety and health measures for the service providing company. Additionally, the service recipient company is obligated to adjust the time and details of work if there is a risk of fire or explosion due to performance of work in the same location (criminal liability upon violation thereof). Key Changes to the Protection, etc. of Fixed-Term and Part-Time Employees Act (the “PFPEA”) (Effective Immediately) The amended PFPEA provides grounds for being exempt from vicarious liability, allowing employers who can demonstrate that they have exercised due care or supervision to prevent a violation of the PFPEA by the employers’ agents and employees to be exempt from paying a criminal fine. In addition to the above, the Amendments include various matters such as the enactment of the Act on the Protection and Support of Essential Employees, amendment of the Labor Relations Commission Act, and amendment of the Framework Act on Employment Policy. Please let us know if you need more detailed information in this regard. [Korean version] .content_view .view_area ul li:before { top: 13px; }2021.06.24
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Newsletters VIEW MORENewslettersKFTC Announces Proposed Amendment to the Enforcement Decree to the FTL On June 4, 2021, the Korea Fair Trade Commission (the “KFTC”) announced the proposed amendment (“Proposed Amendment”) to the Enforcement Decree (the “Enforcement Decree”) to the Monopoly Regulation and Fair Trade Law (the “FTL”). This proposed amendment to the Enforcement Decree is a follow-up action to the overall amendment to the FTL itself, which will come into force on December 30, 2021. The Proposed Amendment sets out specific details to supplement the relevant provisions in the amended FTL. The Proposed Amendment will go through the opinion canvassing period from June 4, 2021 to July 14, 2021, and once finalized, it will come into force at the same time as the amended FTL on December 30, 2021. Among the amendments, we highlight below the key provisions relating to the size-of-transaction test for merger filing, information exchange as a type of cartel, and revocation of leniency benefits. 1. New Merger Notification Threshold Based on Size of Transaction [Article 21 (8) and (9)] Article 11 (2) of the amended FTL creates a new merger notification threshold for the acquisition of a small-sized company, in which the acquiring company must notify the acquisition if (i) the transaction value meets a certain threshold amount and (ii) the acquired company or its affiliate is active in the Korean market at a “substantial level," even if the transaction does not meet other thresholds based on the size of the parties and Korean turnover. The Proposed Amendment will provide that: the transaction value threshold is KRW 600 billion; and the term “substantial level” means one of the following: the acquired company or its affiliate sells or provides products or services in the Korean market to at least one million persons on a monthly basis for three years immediately preceding the notification date; or the acquired company or its affiliate (a) has leased a domestic R&D facility or utilized research personnel for three years immediately preceding the notification date and (b) had an annual R&D budget of at least KRW 30 billion (approx. USD 27 million) at some point during the three-year period immediately preceding the notification date; or other factors similar to (i) or (ii) as further notified by the KFTC. Even more specific matters related to the above provisions, including how they are to be construed, will be provided through KFTC notifications. 2. Information Types in Information Exchange Collusion [Article 43] Article 40 (1) 9 of the amended FTL prohibits companies from engaging in unlawful information exchange collusion. The Proposed Amendment provides the following as types of information that are subject to information exchange prohibition: cost of products or services; quantity of products delivered, quantity of products in the inventory, or quantity of products sold; terms and conditions of products, services or payment. In addition, the KFTC is expected to issue additional guidelines to further describe more specific criteria for determining when information exchange collusion substantially restrains competition. 3. Grounds for Revoking Leniency Benefits [Article 54 (1)] Under Article 44 (3) of the amended FTL, if a person who filed for leniency with the KFTC and was granted leniency benefits (the “leniency applicant”) during a KFTC investigation of a cartel case later makes statements before the court, which differ from those made during the KFTC investigation, the leniency applicant’s benefits can be revoked. The Proposed Amendment sets out the specific grounds for revoking the leniency applicant’s benefits as follows: if the leniency applicant denies material statements or submission during a court proceeding; if the leniency applicant submits false materials; if the leniency applicant fails to diligently cooperate in the trial without a justifiable reason, such as not appearing before the court; or if the leniency applicant files an action claiming that he/she is denying the act of collusion in contravention of the leniency application. As noted above, the Proposed Amendment is currently going through the 40-day opinion canvassing period, ending on July 14, 2021. It would therefore be advisable to review how each of the provisions in the Proposed Amendment may affect your business, and if necessary, consider submitting opinions to the KFTC during this period. [Korean version]2021.06.09
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Newsletters VIEW MORENewslettersAmendment to Environmental Tech and Industry Support Act On April 13, 2021, the amended Environmental Technology and Industry Support Act (the “Amended Act”) took effect. The Amended Act is of particular importance, considering that it is closely related to ESG (Environment, Social and Governance) which has recently became a buzzword for businesses, and it is also designed to contribute to the Korean government’s goal of achieving carbon neutrality by 2050. Please see below for major highlights of the Amended Act: Establishment of “Green Grade System” and a standardized evaluation system to support “environment-conscious investment” (i.e., investment decisions that take into account environmental-friendliness of the impact of the investment) (to become effective on October 14, 2021) To support and promote environment-conscious investment, the Amended Act provides the legal basis for the following: Establishment of the “Green Grade System” which evaluates whether a certain business activity is sustainable and environmentally friendly Establishment of a standardized evaluation system to assess companies’ performance and outcomes in the area of environment protection Designation of institutions such as Korea Environmental Industry & Technology Institute as a dedicated agency to support promotion of policies regarding environment-conscious investment, conduct assessment of environment-friendliness based on the standardized evaluation system, and collect and manage the information necessary for such assessment. Currently, the Ministry of Environment (the “MOE”) is in the process of conducting research to establish the “Green Grade System,” which is customized to the Korean economy and environment, and plans to complete the establishment by the first half of this year in consideration of practices in other jurisdictions such as the European Union. The MOE is also planning to put together by end of the first half of 2021 a guideline on the standardized evaluation on the “Environment” aspect of the ESG performance based on analysis of private institutions’ performance indicators and methodologies. During the second half of the year, the MOE will launch pilot projects with relevant institutions. Broadened the scope of companies which are subject to the disclosure requirement of certain environment-related information (to become effective on October 14, 2021) The Amended Act extends the scope of entities that are required to disclose environment-related information (27 items, including water use, energy consumption, chemicals and wastes generation). Prior to the Amended Act, only the public institutions and certain companies/organizations who have a large environmental impact were subject to this requirement.* However, under the Amended Act, all companies having assets of a certain size will be subject to the disclosure requirement. While the specific threshold amount of the asset is yet to be decided, it will be determined based on comments from the relevant industries, and those companies who will be newly subject to the disclosure requirement under the Amended Act will be obligated to disclose the relevant environment-related information starting from 2022. (*) As of 2021, 1,686 institutions and companies were subject to the disclosure requirement under the pre-amendment Act (including central government agencies, local government offices, public universities, companies subject to emissions permit, and “Green Businesses” (i.e., certain companies designated by the government as operating businesses that are deemed environmentally friendly)). Added “Upcycling Industry” to the definition of “Environmental Industry” under the Act The Amended Act added upcycling industry to the definition of the term “Environmental Industry”** under the Act. The upcycling (i.e., upgrade + recycling) industry as provided in the Amended Act refers to activities that create new values by adding new ideas or designs to wastes that were already discarded but later picked up or recollected, or used products that are about to be discarded. Promoting and supporting upcycling activities is one of the important goals of the Amended Act. (**) “Environmental Industry” refers to certain industries providing facilities, materials or services to protect the environment. [Korean version] .content_view .view_area ul li:before { top: 13px; }2021.05.18
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South Korea National Law Firm of the Year at Chambers Asia-Pacific Awards
Chambers and Partners recognized that Kim & Chang “stands out for its breadth and quality of coverage across the full legal spectrum.”
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Opening of Kim & Chang’s Singapore Office
With the opening of our Singapore office, we now take our successful track record to our clients on a wider regional platform.
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