LIVING IN KOREA FAQ
The information below is provided only as a general guideline, and the circumstances can vary depending on the individual case. The answers below have been discussed with Korean legal experts, however, G.O.A.'L is not responsible or liable for any actions you take based on the given information. It is encouraged that you to seek legal counsel if necessary.
Q: What are the laws regarding military exemption for male adoptees who regain their Korean citizenship (dual citizenship holder)?
A: Under the Korean Military Service Act Chapter 10 Article 71(1) (병영법 제10장 71조 1항), military exemption starts the year the subject turns 36 (international age) unless he falls under one of the 12 categories stated within the article. Korean adoptees who do not qualify for exemption fall under #1, which lists those who intentionally avoided military service. In these situations, exemption applies to the adoptee the year he turns 38 (international age).
Regardless of exemption status, all male adoptees who regain Korean citizenship and are registered as living in Korea are required to complete the annual, mandatory Civil Defense Training. This includes 4 hours per year of lectures and/or physica exercise at a given time and date.
Adoptees who have not been removed from their original family registry will not be exempted from military service.
Q: Will male adoptees with dual citizenship or Korean citizenship be conscripted to serve in case of war?
A: Adoptees that are no longer of eligible age will not be conscripted to servce in the case of war. However, dual citizenship holders, deported adoptees, etc. who are eligible for military service and did not receive the military physical examination could potentially be conscripted.
Those who are of age and received exemption during the physical examination process may be conscripted for non-military support purposes if they have been deemed fit for wartime labor service (전시근로역), however, they will have no obligates if classified as exempt (병역변제). Those who are above the eligible age for conscription will also not be expected to serve in the event of war.
Q: What is the legal basis for exempting adoptees from military service?
A: Under the Korean Military Service Law Enforcment Ordinance Article 136 (2) (병역법 시행령 제136조 2항), orphans who either 1) cannot determine their parents on the family registry, 2) lost both birth parents before age 13, or 3) have lived in a child care facility/treatment facility or a community home for a minimum of 5 years before the age of 18 are exempt from mandatory military service.
This applies to all males with Korean citizenship below the age of 35 under the Military Service Law Chapter 10 Article 71 (병역법 제10장 제71조) regardless of dual citizenship with the exception of those who are determined to be unfit for military service through the physical examination under Military Service Law Chapter 1 Article 11 (병역법 제1장 제11조).
All those who are exempt from military service will still be subject to wartime labor service (전시근로역) in the case of war, even if they are above the age of 36 unless exemption through physical examination is given.
Those that do not fall under the categories of exemption above (including both male adoptees with dual citizenship or only Korean citizenship) are in the blind spot as of now, but thir situation is under consideration by the Military Manpower Administration (병무청). The office handling this matter can be reached at: 042) 481-2946 (병역판정검사과).
Q: Is it possible to change the family name of a child (dual citizen) born to a Korean adoptee and domestic Korean to a Korean family name?
A: The child will take the father's legal last name, whether the father is an adoptee with the F-4 visa or is a domestic Korean with a legal Korean family name. Once the child is old enough to choose their citizenship, the child can legally take whichever name they choose.
Q: I was registered as dead in my family registry.
A: In order to reverse the death status in a Korean family registry, the individual must file a formal complaint to a Korean court, whereupon the judge may make a correction to the family registry (호적정정).
Q: My birth place (호적) cannot be found in the national database (cannot prove Korean origin).
A: Either the Korean adoption agency or orphanage that an adoptee went through should have the birth place (호적) in their possession. This can be used to update the database and apply for the F-4 visa and/or dual citizenship.
Q: My birth family wishes to reinstate me into their family registry (without obtaining Korean citizenship)?
A: Adoptee will become a legal member of the family, also entitling them to the parents' estate. This is separate from being a Korean citizen and thus does not confer the legal obligatins of Korean citizenship (such as serving in the military).
Q: My birth family wish to reinstate me into their family registry under my original Korean name (name given by family), but I was adopted under a different name.
A: The adoptee and birth family can petition the Family Court to prove that the person named by the agency/guardian (at time of adoption) is the same individual as the person named by the birth family. Proof must be provided to this end, including any documents that show the two names together and/or DNA test results which would be most effective as legal evidence.
Q: I have located my birth family. Can I reinstate myself to my birth family's registry without the consent of my birth parents?
A: It is possible by petitioning the Family Court to reinstate a person into the family registry, however, the court will first request consent directly from the father. If the father does not consent, you may then petition the court to restore the relationship in the family registry system via law suit. This is only possible if you have located and are able to contact your birth family.
Q: Birth family wishes to remove adoptee from original family registry.
A: If an adoptee was not removed from the family registry at the time of adoption when the old system was in place (호주제) and before the start of the new system (가족등본), the process is not only administrative. Meaning, the birth family members cannot simply go to a district office (구청) to have the family member removed. They must file a civil law suit and provide proper evidence and reason for removing adoptee from the family registry. If irrefutable proof of biological relationship exists (i.e. DNA), it will be difficult for the family members to remove the adoptee from the registry.
Adoptees who were registered in the system (가족등본) would have had their status cancelled (폐쇄) upon declaring loss of Korean citizenship (국적상실), however, this does not nullify their legal status as a biological member of the family if still on the family registry. This would also make an adoptee eligible to inherit birth parents' estate if no will is present).
Q: Can I participate in political activities as an F-4 visa holder?
A: Article 17 of Korea's Immigration Control Act (Sojourn and Departure of Foreigners) (출입국관리법 제4장 제17조) specifically forbids non-citizens of the Republic of Korea from engaging in "political activities" (정치활동), however, the political activities stated here are ambiguous.
Non-citizens are prohibited from running for office or participating in elections, with the only exception being F-4 visa holders who have held their visa for over 3 years and are eligible to vote in local elections (지방선거). Whether or not participation in other political activities, such as demonstrations, is disallowed is not clear as of July 2018. According to 법무부 외국인정책과 (02-2110-4115).
Q: I don't have a place of birth in my passport.
A: In Sweden, the 호적 itself does not seem to serve as a replacement for the place of birth, at least when it states the family origin is with a city name that is no longer in use (as is the case for 한양 when it should be Seoul). Case is pending approval from the Swedish side, but might have to go to court in Korea to change from 한양 김씨 to 서울 김씨.
Q: When the adoptee was never registered in the family registry prior to adoption, there are a number of ways to resolve the issue of inheritance, including the writing of a legally binding will, registering in the family registration, and DNA analysis to prove familial relationship.
A: A) Writing A Will: Inheritance can be passed on to others who are legally family through a legally binding will. Under the Korean Civil Code Section 1065 (민법 제1065조), in order for a will to be legally binding, it must fall under one of five categories: holograph deed (자필증서), recording (녹음), notarial deed (공정증서), secret deed (비밀증서), or statutory will (구수증서).
i. Holograph Deed (자필증서): Under the Korean Civil Code Section 1066 (민법 제1066조). A holograph deed must be personally handwritten by the testator in order for it to be legally binding. The will cannot be written by someone else or on computer through any word processor, but written in whole by the testator. A court will have to make a determination as to the authenticity of the will upon the death of the testator. Information that must be included in the will includes the content of the will, date it was written, address of the testator, name of the testator, and a seal (날인). This is the most commonly used method for leaving a will.
ii. Recording (녹음): Under the Korean Civil Code Section 1067 (민법 제1067조). A recording of a will in the testator’s own voice can be used as a will. The recording can either be audio or both audio and visual, and requires that the voice be clear and discernible. Content that must be included in the recording includes the name of the testator, the date of the recording, and the content of the will.
iii. Notarial Deed (공정증서): Under the Korean Civil Code Section 1068 (민법 제1068조). A testator may leave a binding will by having a notary write down a verbal statement. Such a notarial deed requires at least two witnesses to be present, and once the will has been written down, the notary must read it aloud to the testator and witnesses upon which they must confirm the writing is accurate and sign and/or stamp as proof of approval.
iv. Secret Deed (비밀증서): Under the Korean Civil Code Section 1069 (민법 제1069조). Similar to a holograph deed, but with the addition of an effect of notarization. Testator seals the written deed in an envelope with the name of the testator and personally presents it to two or more witnesses, indicating it is his/her will. The date is then written and signed or stamped by the testator and all witnesses. The sealed will must then be presented to a public notary within 5 days of the date written to be accepted as a secret deed.
v. Statutory Will (구수증서): Under the Korean Civil Code Section 1070 (민법 제1070조). The testator verbally states the will in the presence of two or more witnesses. One of the witnesses writes down the will, after which said witness reads the will out loud to the testator other witness(es) to confirm the content. The will is finalized by the date and signature of the testator and all witnesses. A statutory will must be notarized in a court within seven days to become legally binding. Statutory wills are produced when the testator is in a situation where he/she cannot leave a will through other means (such as sudden illness or accident), so if a will can be left through other means, this will become null.
B) Family Registration: The family registry can be updated to include adoptees in the case they were never registered at birth but found their birth parent(s). The adoptee can go to the family court (가정 법원) with the parent(s) in order to get a birth confirmation certificate (출생확인서). The certificate can then be used to obtain a birth certificate (출생신고서). This in turn can be used to be registered in the family registry (가족관계증명서) at the district office (구청) of the district where the parent(s) were at the time of birth. (Supreme Court Family Registry Dept. (대법원 가족관계등록부), tel. +82-2-3480-1871)
C) DNA Analysis: Results of a DNA analysis can be used to prove familial relationship between the adoptee and testator, enabling the adoptee to become eligible as a default heir.