Comparing Laws Governing Business Transactions In South Korea And Australia

        South Korean Contract Act

        Australian Contract Act

The contract should be executed in good faith and it is settled by mutual consent i.e. offer and acceptance. There is no theory of consideration.

It comprises of the legal enforcement of contracts .The general principles assume that all the contracts are valid, until it is proven otherwise.

There are 14 types of contracts classified in the Civil Code. Certain principles are applicable to specific types of contracts as well as the same are applicable to general contracts (Wishart, Loke & Ong, 2016).

There are no subdivisions of the contract. There are five important elements for a legally binding contract. These are agreement, capacity, intention, consideration and certainty.

A material breach of a contract will allow the non-breaching party to not to perform its responsibilities and it has the right to sue for all the damages caused. Also, a material breach of a contract will allow the non-breaching party to not to perform its responsibilities and it has the right to sue for all the damages caused.

As per the Australian Contract Act a breach of the contract of the party will enable the other party to terminate the contract if the breach is a repudiatory   breach i.e. the parties have not been excluded from the right to terminate upon a breach.

Secondly, if the parties have specifically provided that upon breach of the contract, the innocent party has the right to dismiss the contract.

The non-breaching parties have certain remedies through South Korean Courts or Arbitrators. Written agreements are considered as the main arguments in the Courts. For such agreements, the courts award liquidating damages to the non-breaching parties (Dennis, 2014).

In the Australian Contract Act, the damages and liquidated claims are the common remedies for the breach of contracts. The damages act as the substitute for the performance.

Liquidated damages are available only if there is clause in the contract between the parties to pay a particular sum of money in case of a breach of contract.

Moreover, Specific performance and Injunction for contractual breaches are also available as solutions for breaches in the Australian Contract Act.

The Statute of Limitations for Tort Claims (under South Korean Law)

Tort law in Australia

A tort is a civil wrong .The law of Torts is a civil law and need not to be based on any contract. Article 750 of the Korean Civil Code defines tort as any person causing damages or injuries to another person by an unlawful act, deliberately or carelessly compensate for damages.

Tort law in Australia comprises of both common law and legislation. It is a civil wrong and it may be sued by one individual against other to rectify the wrong or form of conduct.

In South Korea, the statute of limitations in civil law determines the deadlines for filing a law suit .It is a right of the victim to file a law suit and not an obligation.

In the Australian Tort Law, there are different time limits prescribed for various torts. For example, the time limit for filling a suit for negligence is within three years of discovery of the cause of action by the claimants   or within 12 years from the date of act resulting in injury (Australian Law Reform Commission, n.d.).

There are three types of tort claims in South Korea. First is Tort claim which is based on direct or active loss such as hospital bills. The second is Tort claims based on indirect or passive loss such as low wages. The third is Tort claim based on psychological pain and sufferings such as mental anguish or experience. These three claims are treated as different claims under Korean Law and they can be filed separately or together as the case may be. 298

The common type of claims in Australian law are trespasses , occupation or possession of land , misrepresentation , breach of duties related to public and statutes, negligence , interference with employment and family relations and intentional damage to economic interests (Kotecha, 2014).

Intellectual Property Rights in the Republic of Korea

Australian Intellectual Property laws

According to Intellectual Property Office (2013) Intellectual property rights are assets for the business possessing them. Patents are commercial inventions or discoveries are secured by patents. These are governed by Patent Act in South Korea.

Designs are drawings of new machines or computer models which are governed under Industrial Design Protection Act.

Copyrights are written or published works such as books, songs, films and web contents. The Korean Copyright Act is based on the Copyright Act, 1957.

Trade Marks are regulated under the Trademark Act. They can be defined as the safeguarding designs, coolers and symbols which are used to recognize a product or service (Garg & Anjana, 2014).

IP can be registered or unregistered. In order to get the rights registered, the Intellectual Property Office can be applied. The registered forms of IP comprise of trademarks, design rights and patents Along with unregistered IP, the party automatically has the legal rights over the creation. The unregistered forms of IP comprise of unregistered copyrights, design rights, database rights and trademarks, trade secrets and information.

The intellectual property laws in Australia are associated with patents, trademarks, secret processes and designs. The patent protection provides the right to prohibit the third parties   to produce sell and use any invention in Australia.

The designs in Australia are governed by Design Act 2003. Design can be referred as the overall presentation of the product which results from its one or more visual characteristics.

Copyrights are governed by Copyright Act 1968 in Australia. The copyright safeguards the artistic works, compilations, computer programs and textual materials.

The trade mark protection provides the right to use, sell or permit the use of trade mark . Trademarks are governed by Trademark Act 1995.

The various types of IP processes are registered in different ways. For example, to register the patent, one has to decide filing between a standard innovation or international patent application (PCT). It is further examined under Global Patent Prosecution Highway (GPPH) or under IP Australia- European Patent Office Patent Prosecution Highway (IP Australia- EPOPPH).

The registration of all kinds of copyrights except computer software is registered under Ministry of Culture, Sports and Tourism. The software is register under Ministry of Information and Communications (Carroll, 2015).

It is not necessary to go for a formal registration of Copyright in Australia. The original artistic work gets automatically after it is created.

Agency and Employment Law in South Korea

Workplace Relations Act 1996 (Australia)

Article 32 of the Constitution establishes the following principles of Employment Law:

1. All the citizens are entitled to work.

2. Legislations are formulated for minimum wages and adequate working conditions.

3. The constitution allows specific protection for working minors.

4. It allows favored work prospects for the families of the members of the security services in case of their injury or death on their workplace (Lee, 2015).

The Workplace Relations Act in Australia provides a framework for workplace relations with the intention for promoting  economic prosperity and welfare of the citizens for Australia.

According to the Workplace Relations Act 1996:

1. The Act has formulated the Australian Industrial Relations Council (AIRC) and provided provisions for settlement of industrial disputes.

2. It allows for the compromise and implementation of collective and individual employment agreement.

3. It governs the activities of   employer organizations and trade unions.

4. It also safeguards the freedom of   employees and the employers to get involved in trade unions and employer organizations.

Labor Standards Act (LSA) provides the regulations for minimum compulsory standards for a variety of working conditions. These standards overpower any regulations which are less favorable to the employees in terms of collective negotiating contracts, employment contracts and rules of employment (ROE).  

The standard working hours in Australia are 38 hours. Additionally, there is a provision of flexible working hours for the employees which can allow him to work flexibly according to convenience.

1. Also, there are various acts governing various characteristics of employment which comprises of the minimum wage standards mentioned in Minimum Wages Act, Act for Protection for send out workers, Act governing the retirement benefits of the employees, act governing the Industrial Safety and Health and act on Protection of fixed and part time employees (Kang et al., 2017).

The labor union and management reactions are mentioned in Labor Union and Labor Relations Adjustment Act. It comprises of activities related to labor union and dispute resolution. The grievances are redressed through labor management councils which are administered by Promotion of employee Participation and Cooperation Act (Nazarov, Kang & Schrader, 2015).

The law related to minimum wages is governed by AIRC. According to Section 88A (b) of the Workplace Relations Act 1996, the objectives of the act is to ensure a safety net for safeguarding the minimum wages and clauses of employment.  

The Federal and State Administration prohibit the discrimination to provide equal job opportunity on the basis of pregnancy. Some of the acts are Equal Opportunities Act 1984, Sex Discrimination Act 1984 etc.

The Workplace Relations Act provides the various provisions related to compensation provided by the employees in case of termination as per the Article 12 or 13 of the ILO convention.

The provisions related to Collective bargaining and Agreements are stated in the act by the federal legislation. There are two principles of collective bargaining viz. enterprise level bargaining for compromising for a certified agreement and negotiating for the purpose of making an award (ILO, 2018).