Comparative Analysis of Australian and South Korean Labor Laws

The provided assignment compares the legislations of South Korea with those of Australia. It highlights the flexibility of South Korean laws, allowing foreigners to conduct business in the country. The Australian legal system is also discussed, comprising the Constitution, Executive regulations, and Federal Parliament legislations. A comparative analysis of labor laws between the two countries is presented, including specific laws such as the Standard Contract Act, Patent Act, Trade Mark Act, and Labor Standards Act. The document provides a detailed overview of the employment quota system in South Korea and its impact on labor market outcomes for individuals with disabilities.

Running head: Business Law & International context
Business Law & International context

Business Law & International context 1
Executive Summary
The legal system of ‘the scenario country’ i.e. South Korea is a civil law system which is based
on the Constitution of Republic of Korea. Its law is subjective to European Civil Law System. It
does not recognize the federal legal system. However, with the growing influence of the overseas
countries, it had adopted some of the Anglo-American Law systems. Thus Korean Legal System
consists of both the European Civil Law System and Anglo-American Law System.
So, in this report, various laws pertaining to Contract, Tort, Intellectual Property and Agency and
Employment Relations would be analyzed, in the context of business transactions and compared
with the Australian Legal system.

Business Law & International context 2
Contents
Introduction.................................................................................................................................................3
South Korean Standard Contract Act...........................................................................................................3
The Statute of Limitations for Tort Claims (under South Korean Law)......................................................4
Intellectual Property Rights in the Republic of Korea.................................................................................5
Agency and Employment Law in South Korea............................................................................................6
Conclusion...................................................................................................................................................8
References...................................................................................................................................................9

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Introduction
The legal system of South Korea has transformed continuously in past times. A jury system was
adopted in criminal procedures which was not similar as U.S. jury system. It is based on
European system along with Anglo-American and Japanese legal systems.
There are various laws governing the carrying of business and trade in South Korea and
Australia. Some of them are the Contract Act comprises of South Korean Standard Contract Act
and the Australian Contract Act. The Intellectual Property Act comprises of acts such as Patent
Attorney Act, the Copyright Act etc. The law of Torts comprises of The Statute of Limitations
for Tort Claims (under Korean Law) and the Tort law in Australia .The agency and employment
act consists of Labor Standards Act and the Workplace Relations Act 1996. So, in this report, the
above mentioned Laws will be analyzed and assessed in the context of business transactions in
South Korea and compared with the Australian Legal system (Kim, 2015).
South Korean Standard Contract Act
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.

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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)
The Statute of Limitations for Tort Claims Tort law in Australia

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(under South Korean Law)
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).

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Intellectual Property Rights in the Republic of Korea
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
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

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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.
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
Agency and Employment Law in South Korea Workplace Relations Act 1996 (Australia)
Article 32 of the Constitution establishes the The Workplace Relations Act in Australia
provides a framework for workplace relations

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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).
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
The law related to minimum wages is
governed by AIRC. According to Section 88A
(b) of the Workplace Relations Act 1996, the

Business Law & International context 9
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).
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).

Business Law & International context
10
Conclusion
Hence, to conclude, it can be said that the legislations of South Korea are flexible and allow the
foreigners to carry on the business in the country. There are certain laws namely South Korean
Standard Contract Act, The Statute of Limitations for Tort Claims (under South Korean Law),
Patent Act and Utility Model Act, Trade Mark Act and the Labor Standards Act to support the
foreigners or the citizens of the home country to carry on the business in South Korea.
Additionally, the Australian legal system comprises of many laws which comprise of Australian
Constitution, regulations formulated by the Executive and the legislations passed by the Federal
Parliament.

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11
References
Australian Law Reform Commission (n.d.). Authorizing what would otherwise be a Tort.
Retrieved April 25th, 2018 from https://www.alrc.gov.au/publications/right-sue-tort
ILO(2018). National Labor Law Profile: Australia. Retrieved April 25th, 2018 from
http://www.ilo.org/ifpdial/information-resources/national-labour-law-profiles/
WCMS_158892/lang--en/index.htm
Carroll, M.W. (2015). Sharing Research Data and Intellectual Property Law: A Primer. PLOS
Biology, 13(8), 1-11.
Dennis, M.J. (2014). Modernizing and harmonizing international contract law: the CISG and
the UNIDROIT Principles continue to provide the best way forward. Uniform Law
Review, 19 (1), 114–151.
Garg, K.C. & Anjana, A.K.(2014). Journal of Intellectual Property Rights: A Bibliometric Study.
Journal of Library & Information Technology, 34(1), 66-73.
Intellectual Property Office (2013). Intellectual Property Rights in the Republic of Korea.
Retrieved March 26th, 2018 from
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/456362/
IP_rights_in_Korea.pdf
Kang, Y.J., Myong, J.P., Eom, H., Choi, B., Park, J.H. & Kim, E.A.L.(2017). The current
condition of the workers’ general health examination in South Korea: a retrospective
study. Annals of Occupational and Environmental Medicine, 29(6), 1-19.
Kim, M.(2015). The Spirit of Korean Law: Korean Legal History in Context. BRILL.
Kotecha, B. (2014). Q&A Torts. Routledge.
Lee, M.(2015). Legislative Initiative for Work-Family Reconciliation in South Korea: A
Comparative Analysis of the South Korean, American, French, and German Family
Leave Policies. Asian American Law Journal, 22(3), 45-104.

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Nazarov, Z., Kang, D. & Schrader, S. (2015). Employment Quota System and Labor Market
Outcomes of Individuals with Disabilities: Empirical Evidence from South Korea. The
Journal of Applied Public Economics, 36(1), 99-126.
Wishart, M.C., Loke, A. & Ong, B. (2016). Studies in the Contract Laws of Asia: Remedies for
Breach of Contract. Oxford University Press.
Employ
ment
Quota
System

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and
Labour
Market
Outcome
s of

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14
Individu
als with
Disabiliti
es:
Empirica

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15
l
Evidence
from
South
Korea*

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Employ
ment
Quota
System

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17
and
Labour
Market
Outcome
s of

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18
Individu
als with
Disabiliti
es:
Empirica

Business Law & International context
19
l
Evidence
from
South
Korea*

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20
Employ
ment
Quota
System

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21
and
Labour
Market
Outcome
s of

Business Law & International context
22
Individu
als with
Disabiliti
es:
Empirica

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23
l
Evidence
from
South
Korea*