Thursday, January 11, 2018
Criminal/Evidence 101_001: Is it illegal to record conservation between others in Korea?
Many of you have heard Invasion of Privacy Act in the States, which makes it illegal for a person to record a “confidential communication” whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device.
In Korea, they have different set of rules to govern recording of communication.
1. If you are a party to the conversation, you are allowed to record the conversation without your partner's consent. So Korea is similar to states known as “one-party consent” states in which the consent of at least one party to a conversation is all that is required in order for the conversation to be legally recorded.
Therefore, those recording is admissible in court proceedings.
2. If there are three people including you, and you are secretly recording conversation between the other two in your presence, it is permitted to record their conversation.
The Supreme Court decided that the conversation between those two is not interpreted as "conversation between others" in Article 3 of Protection of Communications Secrets Act as far as the person who recorded was part of the conversation.
(Supreme Court 2006도4981)
Such recording is admissible in court proceedings.
3. However, if you are recording the conversation of others, which you are not part of, without their consent, you violate Article 3(1) and/or 14(1) of Protection of Communications Secrets Act.
Even if one of the parties gave you permission to record the conversation between themselves, you still violate the law by recording "the conversation between others".
In Korea, they have different set of rules to govern recording of communication.
1. If you are a party to the conversation, you are allowed to record the conversation without your partner's consent. So Korea is similar to states known as “one-party consent” states in which the consent of at least one party to a conversation is all that is required in order for the conversation to be legally recorded.
Therefore, those recording is admissible in court proceedings.
2. If there are three people including you, and you are secretly recording conversation between the other two in your presence, it is permitted to record their conversation.
The Supreme Court decided that the conversation between those two is not interpreted as "conversation between others" in Article 3 of Protection of Communications Secrets Act as far as the person who recorded was part of the conversation.
(Supreme Court 2006도4981)
Such recording is admissible in court proceedings.
3. However, if you are recording the conversation of others, which you are not part of, without their consent, you violate Article 3(1) and/or 14(1) of Protection of Communications Secrets Act.
Article 3 (Protection of
Secrets of Communications and Conversation)
(1) No person shall censor any mail, wiretap any
telecommunications, provide communication confirmation data, record or listen to
any conversation between others that are not made public, without recourse to
this Act, the Criminal Procedure Act or the Military Court Act: Provided, That
the following cases shall be governed by the relevant Acts....
Article 14 (Prohibition
of Interference in Others' Conversation Secrets)
(1) No person shall record a conversation between others
that is not open to the public or listen to it through the employment of
electronic or mechanical devices.
(2) The provisions of Articles 4 through 8, 9 (1) (former
part) and (3), 9-2, 11 (1), (3) and (4) and 12 shall apply to recording or
listening as referred to in paragraph (1).
Article 16 (Penalty
Provisions)
(1) Any of the following persons shall be punished by
imprisonment with labor for not less than one year but not more than ten years
or by suspension of qualification for not more than five years: <Amended by Act No. 12229, Jan, 14, 2014>
1. A person who has censored any mail, wiretapped any
telecommunications or recorded or eavesdropped on any conversations between
other individuals in violation of the provisions of Article 3;...
Hyunjoo Ahn, Esq. (JD, LLM)
Law Office of Hyunjoo Ahn
Member of Korean Bar Association
Member of Connecticut Bar Association
540-1, Sangmu Building, Sangmu-jungang-ro, Seo-gu, Gwangju, Korea
Tel: 062-373-1298
Fax: 062-443-1298
E-mail: lawyer4expats@gmail.com
Wednesday, January 10, 2018
Family Law 101_007: Can foreign couple get divorced in Korea?
When a couple of foreign nationality residing in Korea decide to get divorced in Korea, there are certain issues to check such as jurisdiction or applicable laws.
A divorce of non-Koreans in Korea
Does Korean court has jurisdiction over your divorce lawsuit? Probably yes.
When both non-Koreans have established their domicile in Korea, and have lived in Korea for certain amount of time, their marriage and divorce has close relationship with Korea.
According to Act on Private International Law Article 2, provision 1, when the parties and the case in dispute have close, substantial relationship with Korea, Korean court has a jurisdiction over the non-Koreans divorce lawsuit.
One of the spouses may file a lawsuit against the other at the Korean family court that has jurisdiction over her/his domicile.
Note: However the conclusion may vary depending on the actual facts of each case.
Which law is applicable? Korean law or the couple's home country law?
When deciding the applicable law to a divorce case, we should look at Act on Private International Law Articles 39 and 37.
With respect to divorce, the laws applicable would be determined in the following order.
1. the same law of nationality of both spouses;
2. the same law of habitual residence of both spouses;
3. the law of the place where is most closely connected with both spouses.
With respect to divorce, the laws applicable would be determined in the following order.
1. the same law of nationality of both spouses;
2. the same law of habitual residence of both spouses;
3. the law of the place where is most closely connected with both spouses.
In case both spouses are US citizens, it is a bit tricky.
According to the relevant Articles above, if the couple have same nationality, the same law of nationality of both spouses will govern.
In case of the US, each state has its own laws. Therefore pursuant to Article 3, provision 3 of Act on Private International Law, the law designated by the choice provisions under the law of the country shall govern, or the law of a territorial unit which is most closely related with the party shall govern.
In case of the US, each state has its own laws. Therefore pursuant to Article 3, provision 3 of Act on Private International Law, the law designated by the choice provisions under the law of the country shall govern, or the law of a territorial unit which is most closely related with the party shall govern.
Getting divorced in a foreign country can make your life more complicated.
If you need legal help for your divorce in Korea, please do not hesitate to contact me.
If you need legal help for your divorce in Korea, please do not hesitate to contact me.
I, Hyunjoo Ahn, esq. is an experienced lawyer with dual law licences from Korea and Connecticut.
I have studied law and worked both in Korea and US. I can explain Korean legal system in English legal terms that you are familiar with and understand where your concerns are coming from thank to my cross-cultural background.
I have studied law and worked both in Korea and US. I can explain Korean legal system in English legal terms that you are familiar with and understand where your concerns are coming from thank to my cross-cultural background.
Hyunjoo Ahn, Esq. (JD, LLM)
Law Office of Hyunjoo Ahn
Member of Korean Bar Association
Member of Connecticut Bar Association
540-1, Sangmu Building, Sangmu-jungang-ro, Seo-gu, Gwangju, Korea
Tel: 062-373-1298
Fax: 062-443-1298
E-mail: lawyer4expats@gmail.com
Family Law 101_009: My ex is not paying child support. What can I do?
In case your spouse fails to pay the agreed or determined-by-the-court child support cost twice without reasonable explanation, you can ask his employer to pay the corresponding amount to you directly and deduct it from his wage.
It is called the direct payment of child support(custodial expense).
Hyunjoo Ahn, Esq. (JD, LLM)
Law Office of Hyunjoo Ahn
Member of Korean Bar Association
Member of Connecticut Bar Association
540-1, Sangmu Building, Sangmu-jungang-ro, Seo-gu, Gwangju, Korea
Tel: 062-373-1298
Fax: 062-443-1298
E-mail: lawyer4expats@gmail.com
Family Law 101_008: I want to increase the agreed child support after divorce. Is it possible?
Answer: Yes!
What have been agreed upon divorce does not last forever. Things change and you can make changes to the agreement, especially for the benefit of children.
You can negotiate to switch the custodian and get child support expense from your spouse - a parent who is not raising the child after divorce has a duty to pay expense to raise a child to a parent who is raising the child. Or if your spouse does not cooperate, you can file a lawsuit to be designated as a new custodian for your children.
What have been agreed upon divorce does not last forever. Things change and you can make changes to the agreement, especially for the benefit of children.
You can negotiate to switch the custodian and get child support expense from your spouse - a parent who is not raising the child after divorce has a duty to pay expense to raise a child to a parent who is raising the child. Or if your spouse does not cooperate, you can file a lawsuit to be designated as a new custodian for your children.
Once the parental right holder has been changed by the court, you should submit “change of parental right holder” city, gu, eup, myeon office.
In a related note, you can change the determined child support if the circumstances has been changed.
Hyunjoo Ahn, Esq. (JD, LLM)
Law Office of Hyunjoo Ahn
Member of Korean Bar Association
Member of Connecticut Bar Association
540-1, Sangmu Building, Sangmu-jungang-ro, Seo-gu, Gwangju, Korea
Tel: 062-373-1298
Fax: 062-443-1298
E-mail: lawyer4expats@gmail.com
Family Law 101_005: I want to have a custodial right back! (change of custodian right after divorce agreement)
Your spouse and you may have decided that your spouse is better to take care of the minor children upon divorce. However, sometimes you may find out that you are a better parent to be with kids.
Even if you and your spouse agreed upon who will have parental rights and who will raise the kids, if circumstances change or the designated person is not suitable for child raising, you can change the parental right holder and custodian right holder at any time.
You can negotiate to switch the custodian and get custody expense from your spouse - a parent who is not raising the child after divorce has a duty to pay expense to raise a child to a parent who is raising the child. Or if your spouse does not cooperate, you can file a lawsuit to be a new custodian for your children.
Once the parental right holder has been changed by the court, you should submit “change of parental right holder” city, gu, eup, myeon office.
In a related note, you can change the determined custodial expense if the circumstances change. You may need help from a lawyer to request an increase.
In case your spouse refuses to pay the determined custodial expense twice without reasonable explanation, you can ask his employer to directly pay such amount to you and deduct it from his salary.
It is called the direct payment of custodial expense. The process is complex, so ask for legal help.
If you are considering getting divorced in Korea, or has any on-going issues with your divorce in the past, and need any legal help, please do not hesitate to contact me.
I, Hyunjoo Ahn, Esq. am a lawyer with double law licenses. I studied law both in Korea and the US and have earned the law license both in Korea and Connecticut.
I have worked not only with Koreans but also with foreigners residing in Korea.
I have lived oversees over 10 years in the States and in the Netherlands.
I understand the hardships that many foreigners experience as alien in Korea, and am very willing to be any help for them.You can reach me by dropping a note via my email.
I have worked not only with Koreans but also with foreigners residing in Korea.
I have lived oversees over 10 years in the States and in the Netherlands.
I understand the hardships that many foreigners experience as alien in Korea, and am very willing to be any help for them.You can reach me by dropping a note via my email.
Currently I am located in Gwangju, Korea and can talk to you over the phone, skype or in person.
Thanks!
Hyunjoo Ahn, Esq. (JD, LLM)
Law Office of Hyunjoo Ahn
Member of Korean Bar Association
Member of Connecticut Bar Association
540-1, Sangmu Building, Sangmu-jungang-ro, Seo-gu, Gwangju, Korea
Tel: 062-373-1298
Fax: 062-443-1298
E-mail: lawyer4expats@gmail.com
Labor Law 101_006 : I did not have a severance provision in my contract. Can I get severance pay?
No worries!
Regardless of the size of workplace, all employers are obliged to pay severance as far as an employee has worked at least 15 hours per week for a year or longer.
Even if the employee and the employer have agreed to the non-payment of severance, such agreement is illegal, and thus it is void. Therefore once you are qualified for severance, you are entitled to it.
So even though you do not have a provision governing severance, you can claim it.
Remember, all employers are obliged to pay severance to qualified employees.
Hyunjoo Ahn, Esq. (JD, LLM)
Law Office of Hyunjoo Ahn
Member of Korean Bar Association
Member of Connecticut Bar Association
540-1, Sangmu Building, Sangmu-jungang-ro, Seo-gu, Gwangju, Korea
Tel: 062-373-1298
Fax: 062-443-1298
E-mail: lawyer4expats@gmail.com
Regardless of the size of workplace, all employers are obliged to pay severance as far as an employee has worked at least 15 hours per week for a year or longer.
Even if the employee and the employer have agreed to the non-payment of severance, such agreement is illegal, and thus it is void. Therefore once you are qualified for severance, you are entitled to it.
So even though you do not have a provision governing severance, you can claim it.
Remember, all employers are obliged to pay severance to qualified employees.
Hyunjoo Ahn, Esq. (JD, LLM)
Law Office of Hyunjoo Ahn
Member of Korean Bar Association
Member of Connecticut Bar Association
540-1, Sangmu Building, Sangmu-jungang-ro, Seo-gu, Gwangju, Korea
Tel: 062-373-1298
Fax: 062-443-1298
E-mail: lawyer4expats@gmail.com
Labor Law 101_005 Make sure you have a contract before you start working.
After you got a job offer from employer in Korea, you may be thrilled for your new opportunity.
However, first things first.
You should always read your labor contract before you start working. Labor contract is a document that the employer(owner of business) and employees draft before the employees start working, based on agreed terms regarding employment.
To meet Korean labor law, the employer(owner) should contain the working condition in the contract and give the contract document itself to the employee. If the employer(owner) does not create a labor contract, he will be subject to fine due to violation of law.
Immigrant workers must keep one copy of labor contract and should check their working conditions.
Legal terms regarding Korean labor law
According to Korean law, the "standard working hour" is 8 hours per day, 40 hours per week. "Extended work hour" means working hours exceeding 8 hours a day, and for such extra work, one can earn additional 50% of hourly rate for those overworked hours. For night-hour labor, which means working sometime between 10 pm to 6 am, one is entitled to additional 50% of hourly rate for those nighttime work. If you work on holidays, you can claim additional 50% of hourly rate for those holiday work. Rules regarding additional hourly rate do not apply to small business with less than 5 employees.
If you have not made a labor contract with your employer, you should keep record of your work days and work hours in your journal or calendar, and keep the bank statement of your wage for your record.
You can find labor contract forms in various languages at the following link:
Below are the template of standard labor contracts.
표준근로계약서
Standard Labor Contract
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(앞쪽)
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아래 당사자는 다음과 같이 근로계약을 체결하고 이를 성실히 이행할 것을 약정한다.
The following parties to the contract agree to fully comply with the terms of the contract stated hereinafter.
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사용자
Employer
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업체명 Name of the enterprise
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전화번호 Phone number
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소재지 Location of the enterprise
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성명 Name of the employer
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사업자등록번호(주민등록번호)
Identification number
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근로자
Employee
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성명 Name of the employee
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생년월일 Birthdate
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본국주소 Address(Home Country)
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1. 근로계약기간
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- 신규 또는 재입국자: ( ) 개월
- 사업장change자: 년 월 일 ~ 년 월 일
* 수습기간: [ ]활용(입국일부터 [ ]1개월 [ ]2개월 [ ]3개월) [ ]미활용
※ 신규 또는 재입국자의 근로계약기간은 입국일부터 기산함(다만,「외국인근로자의 고용 등에 관한 법률」제18조의4에 따라 출국한 날부터 3개월이 지난 후 재입국한 경우는 입국하여 근로를 시작한 날부터 기산함).
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1. Term of
Labor contract |
- Newcomers or Re-entering employee: ( ) month(s)
- Employee who changed workplace: from ( YY/MM/DD) to ( YY/MM/DD)
* Probation period: [ ] Included (for [ ] 1 month [ ] 2 months [ ] 3 months from entry date), [ ] Not included
※ For newcomers or re-entering employees, the labor contract will enter into effect from the entry date(but, the contract of employees who re-enter three months after departing from Korea in accordance with Article 18-4 of Act on Foreign Workers` Employment, etc. will enter into effect from the first day of work).
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2. 근로장소
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※ 근로자를 이 계약서에서 정한 장소 외에서 근로하게 해서는 안 됨.
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2. Place of
employment |
※ The undersigned employee is not allowed to work apart from the contract enterprise.
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3. 업무내용
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- 업종:
- 사업내용:
- 직무내용:
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3. Description
of work |
- Industry:
- Business description:
- Job description:
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4. 근로시간
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시 분 ~ 시 분
- 1일 평균 시간외 근로시간: 시간
(사업장 사정에 따라 변동 가능)
- 교대제 ([ ]2조2교대, [ ]3조3교대, [ ]4조3교대, [ ]기타)
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※ 가사사용인, 개인간병인의 경우에는 기재를 생략할 수 있음.
※ An employer of workers in domestic help, nursing can omit the working hours.
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4. Working
hours |
from ( ) to ( )
- average daily over time: hours
(changeable depending on the condition of a company)
- shift system ([ ]2groups 2shifts, [ ]3groups
3shifts, [ ]4groups 3shifts, [ ]etc.) | |||
5. 휴게시간
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1일 분
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5. Recess hours
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( ) minutes per day
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210mm×297mm[백상지(80g/㎡) 또는 중질지(80g/㎡)]
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(뒤쪽)
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6. 휴일
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[ ]일요일 [ ]공휴일([ ]유급 [ ]무급)
[ ]매주 토요일 [ ]격주 토요일
[ ]기타( )
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6. Holidays
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[ ]Sunday [ ]Legal holiday([ ]Paid [ ]Unpaid)
[ ]Every saturday [ ]Every other Saturday
[ ]etc.( )
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7. 임금
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1) 월 통상임금 ( )원
- 기본급[(월, 시간, 일, 주)급] ( )원
- 고정적 수당: ( 수당 : 원), ( 수당: 원)
- 상여금 ( 원)
* 수습기간 중 임금 ( )원
2) 연장, 야간, 휴일근로에 대해서는 수당 지급
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7. Payment
|
1) Monthly Normal wages ( )won
- Basic pay[(Monthly, hourly, daily, weekly) wage] ( )won
- Fixed wages: ( fixed wages : )won, ( fixed wages : )won
- Bonus: ( )won
* Wage during probationary employment period: ( ) won
2) Additional pay rate applied to overtime, night shift or holiday work.
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8. 임금지급일
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매월/매주 ( )일/요일. 다만, 임금 지급일이 공휴일인 경우에는 전날에 지급함.
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8. Payment
date
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( ) of every month/every week. If the payment date falls on a holiday, the payment will be made on the day before the holiday.
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9. 지급방법
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[ ]직접 지급, [ ]통장 입금
※ 사용자는 근로자 명의로 된 예금통장 및 도장을 관리해서는 안 됨.
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9. Payment
methods |
[ ]In person, [ ]By direct deposit transfer into the employee's account
※ The employer will not retain the bank book and the seal of the employee.
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10. 숙식제공
|
1) 숙박시설 제공
- 숙박시설 제공 여부: [ ]제공 [ ]미제공
제공 시, 숙박시설의 유형([ ]아파트, [ ]단독주택, [ ]연립ㆍ다세대 주택,
[ ]아파트 또는ㆍ주택에 준하는 시설, [ ]그 밖의 임시 주거시설)
- 근로자 부담금액: 원
2) 식사 제공
- 식사 제공 여부: 제공([ ]조식, [ ]중식, [ ]석식) [ ]미제공
- 근로자 부담금액: 원
| |
※ 숙식제공의 범위와 근로자의 비용 부담 수준은 사용자와 근로자 간 협의(신규 또는 재입국자의 경우 입국 이후)에 따라 별도로 결정.
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10. Accommo
-dations and Meals |
1) Provision of accommodation
- Provision of accommodation: [ ]Provided, [ ]Not provided
(If provided, type of accommodations: [ ]Apartment, [ ]House, [ ]Multiplex housing unit, [ ]Apartment or House style accommodation, [ ]Other makeshift accommodations)
- Cost of accommodation paid by employee: won
2) Provision of meals
- Provision of meals: [ ]Provided([ ]breakfast, [ ]lunch, [ ]dinner), [ ] Not provided
- Cost of meals paid by employee: won
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※ Accommodation arrangement and costs, including the amount paid by employee, will be determined by mutual consultation between the employer and employee (Newcomers and re-entering employees will consult with their employers after arrival in Korea).
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11. 이 계약에서 정하지 않은 사항은 「근로기준법」에서 정하는 바에 따른다.
※ 가사서비스업 및 개인간병인에 종사하는 외국인근로자의 경우 근로시간, 휴일ㆍ휴가, 그 밖에 모든 근로조건에 대해 사용자와 자유롭게 계약을 체결하는 것이 가능합니다.
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11. Other matters not regulated in this contract will follow provisions of the Labor Standards Act.
※ The terms and conditions of the labor contract for employees in domestic help and nursing can be freely
decided through the agreement between an employer and an employee.
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년 월 일
____________ (YY/MM/DD)
사용자: (서명 또는 인)
Employer: (signature)
근로자: (서명 또는 인)
Employee: (signature)
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표준근로계약서(농업ㆍ축산업ㆍ어업 분야)
Standard Labor Contract(For Agriculture, Livestock and Fishery Sectors)
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(앞쪽)
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아래 당사자는 다음과 같이 근로계약을 체결하고 이를 성실히 이행할 것을 약정한다.
The following parties to the contract agree to fully comply with the terms of the contract stated hereinafter.
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사용자
Employer
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업체명 Name of the enterprise
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전화번호 Phone number
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소재지 Location of the enterprise
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성명 Name of the employer
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사업자등록번호(주민등록번호)
Identification number
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근로자
Employee
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성명 Name of the employee
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생년월일 Birthdate
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본국 주소 Address(Home Country)
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1. 근로계약기간
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- 신규 또는 재입국자: ( ) 개월
- 사업장change자: 년 월 일 ~ 년 월 일
* 수습기간: [ ]활용(입국일부터 [ ]1개월 [ ]2개월 [ ]3개월), [ ]미활용
※ 신규 또는 재입국자의 근로계약기간은 입국일부터 기산함(다만,「외국인근로자의 고용 등에 관한 법률」제18조의4에 따라 출국한 날부터 3개월이 지난 후 재입국한 경우는 입국하여 근로를 시작한 날부터 기산함).
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1. Term of
Labor
contract
|
- Newcomers or Re-entering employee: ( ) month(s)
- Employee who changed workplace: from ( YY/MM/DD) to ( YY/MM/DD)
* Probation period: [ ]Included (for [ ]1 month [ ]2 months [ ]3 months from entry date), [ ]Not included.
※ For newcomers or re-entering employees, the labor contract will enter into effect from the entry date(but, the contract of employees who re-enter three months after departing from Korea in accordance with Article 18-4 of Act on Foreign Workers` Employment, etc. will enter into effect from the first day of work).
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2. 근로장소
|
※ 근로자를 이 계약서에서 정한 장소 외에서 근로하게 해서는 안 됨.
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2. Place of
employment
|
※ The undersigned employee is not allowed to work apart from the contract enterprise.
| ||||
3. 업무내용
|
- 업종:
- 사업내용:
- 직무내용: (재배작물 종류, 가축 종류, 연근해어업, 양식어업, 소금채취업 등 해야 할 일 등을 구체적으로 기재)
| ||||
3. Description
of work
|
- Industry:
- Business description:
- Job description: (State the detailed working duties and responsibilities of the list of crops or livestock, costal fishery, aquiculture, salt harvesting)
| ||||
4. 근로시간
|
- 시 분 ~ 시 분 - 월 ( )시간
|
*「근로기준법」제63조에 따른 농림, 축산, 양잠, 수산 사업의 경우 같은 법에 따른 근로시간, 휴게, 휴일에 관한 규정은 적용받지 않음.
*In pursuant to the Article 63 of the Labor Standards Act, working hours,
recess hours, off-days are not applied to agriculture, forestry, livestock breeding, silk-raising farming and marine product businesses. | |||
※ 평소보다 근로시간의 변동 폭이 큰 농번기, 농한기(어업의 경우 성어기, 휴어기) 등의 경우 당사자가 협의하여 별도로 정할 수 있음.
| |||||
4. Working
hours
|
- Regular working hours: from to - ( ) hours/month
| ||||
※ Flexible working hours can be arranged and applied separately through consultation during peak seasons or off-seasons based on varied workloads.
| |||||
5. 휴게시간
|
1일 분
| ||||
5. Recess
hours |
( ) minutes per day
| ||||
6. 휴일
|
[ ] 주1회, [ ] 월1회, [ ] 월2회, [ ] 월3회, [ ] 기타 ( )
※ 휴일은 정기적으로 부여하는 것을 원칙으로 하되, 부득이 한 경우 당사자가 협의하여 날짜를 조정할 수 있음.
농번기(성어기) : [ ] 주1회, [ ] 월1회, [ ] 월2회,
[ ] 월3회, [ ] 기타 ( ) | ||||
210mm×297mm[백상지(80g/㎡) 또는 중질지(80g/㎡)]
|
If you have any employment law disputes with your employer, please contact me.
I am Hyunjoo Ahn, a lawyer with Korean and US(CT) law licenses.
I have experience in both legal systems and understand the unique situation of foreign residents in Korea. My practice area include civil, criminal, administrative, contract, employment, family issues in Korea law, and US immigration law.
You can reach me via email or by phone.
I look forward to assisting you in any legal matter you may have.
Thanks!
Hyunjoo Ahn, Esq. (JD, LLM)
Law Office of Hyunjoo Ahn
Member of Korean Bar Association
Member of Connecticut Bar Association
540-1, Sangmu Building, Sangmu-jungang-ro, Seo-gu, Gwangju, Korea
Tel: 062-373-1298
Fax: 062-443-1298
E-mail: lawyer4expats@gmail.com
lawyer4expats@gmail.com
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