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 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 information below. We encourage you to seek legal counsel if in doubt.
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) (병역법 제10장 71조 1항), exemption starts the year the subject turns 36 unless he falls under one of the 12 categories within this article, of which adoptees who do not qualify for exemption would fall under number 1, which lists those who intentionally avoided the military service. In situations where this is the case, exemption applies to the adoptee the year he turns 38. Regardless of exemption, all adoptee males who regain Korean citizenship and are registered as living in Korea are required to complete the annual, mandatory Civil Defense Training. Adoptees who have not been removed from their original family registry fall are not 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 serve in the military. However, dual citizenship holders, deported adoptees, etc. who are eligible and did not receive the military physical examination could be called to arms.
Those who are of age and received exemption during the physical examination process might be conscripted for non-military support purposes if they have been deemed fit for wartime labor service (전시근로역), however will have no obligations if they have been classified as exempted (병역변제). Those who are above the eligible age for conscription will not be conscripted to serve in the military during the event of war.
Q: What is the legal basis for exempting adoptees from military service?
A: Under the Korean Military Service Law Enforcement 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, child care treatment facility, or a community living 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 under 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 above will still be subject to wartime labor service (전시근로역) in case of war even if they are above the age of 36 under Military Service Law Chapter 10 Article 71 (병역법 제10장 제71조) unless they receive exemption through physical examination.
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 their situation is under consideration by the Military Manpower Administration (병무청). The office handling this matter can be reached at 042) 481-2946 (병역판정검사과).
Q: Adoptee residing and married in Korea to a Korean national wants the child to carry adoptee’s Korean last name, but his legal name is American. The child is a minor with dual citizenship (f). How do they change the child’s name to the father’s Korean family name?
A: The child will take the father’s legal last name, whether the father is an adoptee w ith the F-4 visa or has Korean name or otherwise. Once the child is old enough to choose its citizenship, then the child can legally change the name if wanted.
Q: Adoptee registered as dead in the family registry.
A: In order to reverse the death status in the family registry, the individual must file a formal complaint to a Korean court whereupon the judge may make a correction in the family registry (호적정정).
Q: Adoptee’s 호적 (birth place) cannot be found in the national database making it impossible for the adoptee to prove Korean origin for obtaining the F4 visa.
A: Either the Korean adoption agency or orphanage that the 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.
Q: Birth family wishes to reinstate the adoptee into the family registry (without the adoptee obtaining Korean citizenship).
A: Adoptee will become a legal member of the family, entitling them to the parents’ estate. This is separate from being a Korean citizen and thus does not confer the legal obligations of Korean citizenship (such as serving in the military).
Q: Birth family and adoptee wish to reinstate the adoptee but the adoptee has legally been given a different name by the agency / legal guardian for the adoption process. They wish to reinstate the adoptee under the original Korean name given by the birth family.
A: The adoptee and family can petition to the Family Court to prove that the person named by the agency/guardian is the same individual as the person named by the birth family. Proof must be provided to this end, including any documents that have the two names together and/or DNA test results which would be most effective as legal evidence.
Q: An adoptee located the birth family and would like the relationship to be restored in the family registry, is this possible? What if the birth father or mother do not consent to restoring the relationship?
A: It is possible by petitioning the Family Court to reinstate a person in the registry. The court will request consent directly from the father. If the father does not consent, you may petition the court to restore the relationship in the family registry system via a law suit. This is only possible if you have located your birth family.
Q: In some cases, the adoptee was never removed from the family registry and now, family members wish to remove the adoptee.
A: If an adoptee was not removed from the family registry when it was in the old system (호주제) before the start of the new system (가족등본), the process of removing a family member from the registry is no longer a simple administrative matter. This means family members cannot simply go to the district office (구청) and have another family member removed. Adoptees who were registered in the system (가족등본) will have their status cancelled (폐쇄) upon declaring loss of Korean citizenship (국적상실), but this does not nullify their legal status as a biological member of the family (thus making the adoptee an eligible heir of the parents’ estate when no will is present). In order for family members to remove another member, they would have to go file a civil suit and provide suitable evidence for such actions. If irrefutable proof of biological relationship exists (i.e., DNA), this will most likely be an uphill battle for the family member(s).
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). The “political activities” stated here is ambiguous at this point. Non-citizens are prohibited from running for office or participating in elections, with the only exception being F-4 holders who have held their visa for 3 years and are eligible to vote in local elections (지방선거). Participation in other political activities, such as demonstrations, is not clear as it has not been thoroughly defined (according to 법무부 외국인정책과 (02-2110-4115) as of July 2018).
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.