“Domestic law for divorce cases of North Korean defectors…North Korean corporations recognize only Kaesong Industrial Complex”

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Supreme Court [Yonhap]

[Herald Economy=Reporter Yoo Dong-hyun] A research report has been released stating that it is appropriate to apply South Korean law when North Korean defectors file lawsuits in South Korean courts for divorces from their spouses still residing in North Korea. It was also analyzed that it is appropriate to recognize corporations in North Korea as established under the Inter-Korean Exchange and Cooperation Act.

According to the legal community on the 7th, this content was included in the ‘Research on Jurisdiction over Civil Legal Disputes between South and North Korean Residents’ report submitted to the Court Administration Office by the Korea-China Law Association. The administration office called for research services last year to establish specific laws in preparation for the activation of inter-Korean exchanges and unification.

Currently, the majority academic opinion is to follow international private law in civil lawsuits between South and North Korean residents. The report points out that the consistency of court decisions, whether based on international private law or domestic law, has been lacking. It states that a systematic legal norm needs to be established for deciding on jurisdiction and other matters in civil trials between the two Koreas. The report provides principles and standards for the jurisdiction of courts, approval of judgments, and execution in civil lawsuits between South and North Korea, referencing the relatively similar cases of China, Taiwan, Hong Kong, and Macao.

So far, various types of civil lawsuits have been filed between the two Koreas, but they have been limited by unclear standards. In a damage compensation lawsuit filed against North Korea and Chairman Kim Jong-un by Mr. A, who defected from North Korea in June 2000 after suffering forced labor, the court accepted Mr. A’s claim but did not pronounce a judgment. It was the first lawsuit in which a defector claimed damages for illegal activities in North Korea, but it was unclear whether the standard for judging illegal activities should be based on domestic law or whether it falls under state immunity according to international law.

In a case where an insurance company claimed a subrogation right in an incident where Mr. B, who was working in the Kaesong Industrial Complex, was hit by a bus from the Kaesong Industrial District Management Committee and died, the court decided to pay 90% based on domestic law. However, the report points out that it is necessary to review whether the Kaesong Industrial Complex corporation can be recognized. In June, the government claimed damages of 44.7 billion won (approximately $37.9 million USD) from North Korea for the responsibility of blowing up the inter-Korean liaison office located in the Kaesong Industrial Complex. It was the first time the government filed a damage compensation lawsuit against North Korea, but the clear standard is unclear.

The report analyzes that the legal capacity of North Korean corporations is reasonable to be recognized as corporations in South Korea if they are established under the ‘Inter-Korean Exchange and Cooperation Act’. In this case, it explains that there is an advantage of being able to file a lawsuit regardless of the governing law in case of contract conclusion and future disputes with North Korean corporations. It was also analyzed to be convenient in copyright-related lawsuits. According to the theory of special relations between South and North Korea, it is believed that the effect of North Korean law is recognized within the normative area where North Korea acts as a partner for reconciliation and cooperation under Article 4 of our constitution. Based on this, it is said that if a North Korean corporation established according to the Kaesong Industrial Complex in North Korea files a lawsuit in a South Korean court, party capacity can be recognized.

In intellectual property lawsuits, according to international private law, the works of North Korean residents are protected under domestic law. However, it points out that it is not reasonable according to the principle of reciprocity as North Korea is currently not protecting our country’s works. In divorce lawsuits by North Korean defectors, it was analyzed that there is a need to revise the North Korean Defectors Act to establish a special provision that applies South Korean law in divorce lawsuits by North Korean defectors.