SOUTH KOREA LAW AND PRACTICE Contributed by: Tehyok Daniel Yi, Gun Kim, Kyu Hyun Kim, Sun Hee Kim, Yong Whan Choi, Yong Min Lee, Jung Woo Lee and Hyeon Jeong, Yulchon LLC
employment relationship against the employee’s will, provided that: • in a change of control transaction of an employer unless the CBA provides otherwise, the employee’s consent is not required; and • in the transfer of a business, the employees of the business are automatically transferred unless indi - vidual employees decide to opt out. When the employees are transferred to another legal entity, the terms and conditions of employment should remain the same, and, therefore, consent of an indi - vidual employee is required if the terms and condi - tions set out in the individual employment agreement need to be changed unfavourably (from the employ - ee’s perspective) and the consent of a majority of the transferred employees is required if the terms and conditions set out in the rules of employment need to be changed unfavourably (from the employees’ per - spective). In addition, if there is a CBA that states pre-consulta - tion or consent of the labour union in regard to acqui - sition, change of control or other similar transaction is required, the employer’s obligations under the CBA must be observed. 11. Intellectual Property and Data Protection 11.1 Intellectual Property Considerations for Approval of FDI The ITPA restricts foreign acquisitions involving cer - tain technologies designated as national core tech - nologies. Specifically, if a foreign investor seeks to acquire 50% or more of shares or effective control of a Korean company or its business holding a nation - al core technology, prior approval or reporting to the MOTIE is required. See 7. Foreign Investment/ National Security . 11.2 Intellectual Property Protections South Korea is generally considered to provide strong intellectual property protections by offering various venues for IP enforcement and adequate remedies/ sanctions.
For venues, IP owners can file a lawsuit before judi - cial courts and also seek to initiate a KFTC investiga - tion for cases involving IP infringement allegations. Additionally, IP infringement can be subject to criminal liability. In terms of remedies and sanctions, civil remedies, administrative sanctions and criminal sanctions are available. Civil remedies include equitable reliefs (eg, injunctions, destruction of infringing products and/or facilities used for the manufacture thereof) and mon - etary damages, which can be enhanced in the case of wilful infringement (up to five times for patents, trade marks and trade secrets). Administrative sanctions can include export bans and administrative penalties. Criminal sanctions include imprisonment and criminal fines. However, certain limitations and exceptions may apply in the protection of IP as follows. • AI-generated inventions are not patentable and AI-generated works of authorship without human input are not copyrightable. • Methods of treatment, diagnosis and prophylaxis of humans are ineligible for patent protection. • The Korean government has the compulsory licensing power in certain circumstances (eg, state of emergency) although this power has not been exercised to date. 11.3 Data Protection and Privacy Considerations In South Korea, data protection is primarily regulated by the Personal Information Protection Act (PIPA). The Credit Information Use and Protection Act (the “Credit Information Act”) can take precedence over the PIPA with respect to financial companies’ pro - cessing of credit information. Credit information is defined under the law as “the information necessary to assess the creditworthiness of a counterparty in financial or commercial transactions”, that is com - bined with information that can identify a specific credit information subject. The Act on Promotion of Information and Communications Network Utilisation and Information Protection (the “Network Act”) also oversees IT service network security, covering nearly all online services and measures for spam prevention.
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