Article from Dispatch:
[Q&D] “Does he want to leave the group?”…23 questions about Kris’ lawsuit
In December, 2009, Super Junior’s Chinese member Han Geng left his group. He filed a lawsuit for “confirmation of the exclusive contract’s invalidity”. He took an issue with the contract’s period and profit distribution.
In May, 2014, EXO member Kris is following the path of Han Geng. On the 15th, he filed a lawsuit for “confirmation of the exclusive contract’s invalidity”. He claimed that his contract was violated. Currently, Kris is staying away from his group and the other 11 members are doing their scheduled activities.
[…]
Q. What is this lawsuit called “confirmation of the contract’s invalidity”?
D. It means “I acknowledge that I agreed to the contract but I ask you to check whether it is still effective”. In other words, he acknowledges the contract but he wants to nullify it after a certain point of time. It is a lawsuit that most celebrities file when they deal with excessive schedules or poor distribution of profits. (Lawyer Kim Gyeong-hwan)
Q. Fans still find hope from the fact that it is not a “lawsuit for nullification of the contract”.
D. Both lawsuits intend to nullify the contract. Both have the same purpose of checking the contract’s illegality. However, the difference is when the contract becomes nullified. For “confirmation of the contract’s invalidity”, the plaintiff sets a certain point of time and asks to nullify the contract after that point. (Lawyer Kim Gyeong-hwan)
Q. Setting a certain point of time?
D. For example, let’s say the plaintiff chose March 4th in 2014. Then it means “I acknowledge the contract before that date. However, I cannot honor it after March 4th. Please check whether the contract is still valid after that date.” We don’t know what date he choose. (Lawyer Kim Gyeong-hwan)
Q. If he wants to nullify the contract, wouldn’t it be more effective to file a “lawsuit for nullification of the contract”?
D. That lawsuit denies the contract altogether. Then they have to prove the illegality of the contract’s content itself, which is hard. There are extremely few cases where they win a lawsuit like that. You have to prove the illegality of the accused such as taking excessive profits exploiting the plaintiff’s mistakes or inexperience, proxy contract or fake arranged contract. (Lawyer Seon Jong-mun)
Q. What is the advantage of the lawsuit he filed?
D. If Kris signed a standard contract with SM and SM violated any part of it, there is a high chance that Kris can win. If it is true that SM forced excessive schedules on him, it can be considered a violation. It should be proven to the court. (Lawyer Seon Jong-mun)
Q. This lawsuit looks similar to the case of Han Geng.
D. Han Geng filed a lawsuit for confirmation of the exclusive contract’s invalidity. At that time, the court ruled against SM for the excessively long period of contract, which was 13 years (2005-2018). According to the “standard contract for popular culture artists”, the contract cannot last for longer than 7 years. For singers, it can be longer but the singers themselves can nullify the contract after 7 years at any time they want.
Q. Will the outcome for Kris be similar?
D. Not necessarily. Kris is a different case. When Han Geng signed the contract in 2003, there was no “standard contract”. So unfair clauses might have been included. It is different for Kris. SM has been using the standard contract for all artists since December 2010. Kris might have also signed the standard contract. It is unlikely that the contract itself is illegal. (Lawyer Seon Jong-mun)
Q. What if SM forced excessive schedules on Kris as he claimed?
D. It’s very hard for me to tell because I don’t know what happened between Kris and SM. No company is able to completely comply with the contract. There is always room for violations. If Kris persistently makes an issue of some problematic conduct of SM, there is a chance for him to win. (Lawyer Seon Jong-mun)
Q. If Kris wins the lawsuit, what will happen to the money issue?
D. In a lawsuit for confirmation of the exclusive contract’s invalidity, the contract before the set point is still protected. Hence, Kris doesn’t have to return any profit from his activities under SM until that point. If it was a lawsuit to nullify the contract itself, it would be a different story. They will have to resettle their profit distribution because the whole contract becomes null and void. (Lawyer Kim Gyeong-hwan)
Q. If Kris loses, can SM sue him for damages?
D. Of course. If no violation from SM is proven, the contract remains effective. In that case, SM can blame Kris. For example, they can sue him for financial and psychological damage caused by his absence without consent. However, the companies usually don’t file a counter lawsuit because they acknowledge the service of the artists. (Lawyer Lee Jae-man and Seon Jong-mun)
Q. What about the possibility that Kris filed the lawsuit just to make changes to his contract?
D. Unlikely. When they want to make changes to their contract, they usually negotiate with their agency. There are very few cases where they brought it to the court. Even if Kris originally just wanted to make changes to his contract, he might have failed anyway because he eventually brought it to the court. (Lawyer Kim Gyeong-hwan, Lee Jae-man and Seon Jong-mun)
Q. What will be the next step and how long will it take for the lawsuit to be concluded?
D. In principle, it takes 6 months until the court’s decision. But it may take longer if some adjustments are made in the middle of the process. If Kris wins, he will be free from the contract and he can do independent activities. On the other hand, if SM wins, the contract remains. (Lawyer Lee Jae-man)
Q. What did Kris complain about SM?
D. Kris picked three reasons for the lawsuit. First, unfair treatment. He claimed that he was treated like a component or an object to control rather than a celebrity. Second, inflexible schedules. He claimed that SM went ahead with schedules without asking him for consent or considering his physical conditions. Lastly, profit distribution. He claimed that his agency only showed him simple calculation sheets instead of detailed profit distribution data.
Q. Did SM treat Kris like an object to control?
D. Control is inevitable for rookie idols. It is the same with any other agencies. Most idols are in their late teens or early twenties. They aren’t good at managing themselves yet. Stars rely on their image. A certain degree of control is natural. After the recent Sewol ferry accident, we are more strictly watching on our idols’ behavior. Even if they complain about our control, we can’t help it. How to accept it depends on their own mindset. (Big 3 entertainment agency staff)
Q. Kris is Chinese. Would he have experienced cultural differences with Korean members?
D. Kris belongs to EXO-M consisting of 4 Chinese members and 2 Korean members. Wouldn’t it rather be the Korean members who may feel alienated? Their activities are mainly in China. Korean members are more likely to experience cultural differences. As no other Chinese members raised an issue like that, I don’t think such a problem exists in any significance. (Smaller idol agency staff)
Q. Are schedules forced against their own will or physical conditions?
D. Normally, schedules are settled one month or two in advance. For rookies, their companies often make decisions on their schedules. Of course, the companies explain what kind of activities they will participate in. However, it is hard to predict what kind of physical conditions they will be in on the day of the activity. You can’t know what their conditions will be like in a month. We decide what to do on each day. If a singer is asked to do an activity even when they got a flu, it can be a problem. You have to listen to both sides of the story. (Big 3 entertainment agency staff)
Q. Kris claimed that SM made decisions on every schedule without asking for his opinion.
D. A part of this is inevitable for rookies. EXO is in the second year of their career. They are just losing the label of rookies. In fact, it is hard for rookies to make good decisions on their schedules. Someone has to make decisions for them and lead them. If the agency left it all up to their singers, then someone would file a lawsuit against the agency for not doing their work. It is something rookies have to accept. However, when the singers become experienced after some years, most times, we discuss our schedules together. (Major entertainment agency staff)
Q. Kris raised an issue about profit distribution. He claimed that his agency did not reveal the distribution sheet.
D. SM distributes profits twice a year. The management team gives a briefing to each singer. Some singers attend it with their parents to check the distribution sheet. In smaller companies, they aren’t as professional. They just explain it verbally. The big 3 companies [SM, YG and JYP] are listed on the stock market, so they cannot manipulate their profit distribution. (Former SM manager)
Q. Kris complained about his income.
D. Korean entertainment agencies have the trainee system. They foster trainees and debut them as singers. They invest hundreds of millions of won in this process. They take a lot of risks. EXO members were trained for several years, but when they debuted, the public response was worse than expected. They began to make profits only after promotion of “Growl”. There must have been a gap between the income Kris anticipated and actually distributed income. (Music industry staff)
Q. Do Chinese brokers really exist?
D. The idol groups who receive attention from China are EXO, TVXQ, Big Bang, Super Junior and 2PM. Chinese agencies with huge financial power actively send love calls to them. The idols may think if they can go solo in China, they will be able to make much more money. Han Geng’s case was like that. At the height of Super Junior’s popularity, he suddenly filed a lawsuit against his agency. It is up to each individual’s decision after all. (Smaller entertainment agency staff)
Q. There are other Chinese members in EXO. Is there any possibility for their chain-quitting?
D. The possibility is low. First of all, no other members filed a lawsuit along with him. They aren’t taking action together. Chinese member Tao wrote, “After all, he didn’t come back after deceiving our company and team when we didn’t know what was going on.” Chain-quitting is very unlikely. (Music industry staff)
Q. Will Exo-M’s activities be in trouble without Kris?
D. First of all, they have to do their upcoming concert as a full group and EXO-M’s activities without Kris. Trouble is inevitable. However, it’s unlikely that EXO’s position will be shaken. In EXO-M, Luhan and Xiumin’s popularity is big. Kris’ empty spot is a problem right now but it won’t be an obstacle in the long run. (Big 3 entertainment agency staff)
Q. How do you think the lawsuit will be concluded?
D. SM stated that they will do their best for EXO’s current activities right after Kris’ lawsuit was reported. Since Kris already began a legal battle, it would be hard to expect a smooth agreement. There will likely be adjustments as in the case of Han Geng. Kris will pursue his own career in China. Maybe SM will come up with “Plan B” to fill up Kris’ empty spot. (Music industry staff)
Comments from Naver:
me88****:
The fact that he filed a lawsuit during this busy period means that he has no intention to come back.
rmff****:
I don’t usually like SM but Kris’ fault is big this time.
me88****:
If it was an issue of the contract, why is Kris the only one who made an issue out of 12 members? He abandoned his fellow members to live on his own.
skal****:
It must be like this. He grew up as the only precious son in a rich family. He couldn’t stand the disciplined group life that was expected by SM and trainee life. The effect of the one-child policy in China.
mcca****:
Ha..I’m at a loss for words. A guy who’s supposed to be a leader betrayed his own members..I’m disappointed.
jjas****:
Good. Now Han Geng and Kris can make a duo group named Super Exo.
lvsh****:
Hey, ke ke ke. What kind of company asks an idol in his second year of career for consent to make schedules, ke ke ke. They just do the schedules as they come. Does he think he’s on Cho Yong-pil‘s level? Ke ke ke ke ke.
siri****:
Before considering what SM has done, you should see that everyone in the group has worked hard together to become as famous as now… At least for your fellow members who have helped you become famous, why couldn’t you just finish the upcoming concert? How hard would it be for the remaining 11 members?
porz****:
Even if Kris leaves the group, don’t take a new member. It will be hard to get attached to him.
gain****:
Those who defend Kris must be little kids who had no social life experience. Even for a group project at college, this sort of thing would be considered so irresponsible and inconsiderate. Yes, I think he is spearheading in consideration of other members, too. Indeed, he is spearing his fellow members left and right.
