Litigation 2019 Comparisons

Last Updated December 21, 2018

Contributed By Kim & Chang

Law and Practice

Authors



Kim & Chang Kim & Chang is widely recognised as having Korea’s premier litigation practice, with expertise covering all aspects of disputes including securities litigations, white-collar/regulatory investigations, and commercial litigations involving intellectual property, insurance, M&A, and competition, among others. Our litigation department is comprised of more than 150 seasoned lawyers whose knowledge and experience have helped to achieve the winning track record that is unparalleled in the legal industry. Our lawyers formulate and implement a dispute resolution strategy for each of our clients, focusing on each client’s business needs and goals. Litigations are becoming more complex and diverse and raise new and challenging issues. Kim & Chang is the law firm in Korea that has the resources to assemble customised teams comprised of experienced litigators and industry experts such as accountants, patent attorneys, etc whose expertise will be brought to bear in all aspects of the relevant dispute. Our ability to assemble such customised teams sets us apart from other law firms in Korea and enables us to manage large-scale litigations effectively and efficiently. Kim & Chang’s litigation department strives to maintain its position as the law firm of choice when clients need assistance on dispute-related matters.

Korea is a civil law country with procedures that are similar to those of other civil law countries such as Germany, France and Japan. In principle, the civil litigation system in Korea is designed to be adversarial, but inquisitorial procedures are also incorporated within the system.

In principle, the court should only consider the arguments presented orally at the hearing. However, in most cases, the parties are required to submit written briefs to the court in advance, so that the hearing may be conducted efficiently. Such submissions are not required for cases involving small amount claims heard by single judge panels. While previously, in practice, most of the oral arguments at hearings used to be perfunctory, now the court is encouraging parties to present their arguments and counterarguments more substantively at hearings. Presentations are becoming more common and the electronic case filing system facilitates effective debate at the hearing as the contents of written submissions and/or the related evidence can be viewed in the courtroom through a projector. Still, written submissions carry considerable weight with the judge, especially when the factual and/or legal issues are complex and a series of hearings are held to conclude a case.

Korea is not a federal state and, as such, has a single judicial system.

The Korean court system for civil cases consists of three levels: (i) the courts of first instance; (ii) the courts of appellate level; and (iii) the Supreme Court. There are no separate commercial courts and commercial cases are treated as ordinary civil cases. 

There are no separate courts established to hear small claim cases. Instead, cases are assigned at the courts of first instance level based on the size of the claim, as follows:

  • where the claim amount is KRW200 million or less, the case is heard by a single judge. 
  • where the claim amount is more than KRW200 million, or if the claim amount cannot be determined, the case is heard by a panel of three judges.

The claim size also determines which court hears the appeal. For smaller claims of KRW200 million or less, appeals are heard by appellate benches at district court level. For larger claims, appeals are heard at one of the five High Courts located in different regions: Seoul, Busan, Daegu, Daejeon and Gwangju.

In addition, there are specialised courts, such as Family Court, Administrative Court and Patent Court. The Family Court and the Administrative Court are the courts of the first instance level and the appeal to the decisions rendered by such specialised courts are heard by the courts of the appellate level (three levels system retained). The Patent Court is treated as courts of the appellate level and reviews the decisions by the Intellectual Property Trial Board. As such, any appeal to the judgment of the Patent Court should be submitted to the Supreme Court. Similarly, disputes in which the Korea Fair Trade Commission is a party are heard at the Seoul High Court, and appeals to the Seoul High Court’s judgment can be reviewed by the Supreme Court. Also, to handle administration of bankruptcy proceedings and related disputes, rehabilitation courts may be established. Currently, there is one rehabilitation court in Seoul, namely the Seoul Rehabilitation Court. 

As a matter of court administration practice, certain panels at the civil courts are designated as panels focusing on particular types of cases, such as handling applications for injunctive relief. Further, to efficiently handle the complex disputes, some courts have assigned certain panels of judges to deal with certain types of disputes, including cases involving international transactions, securities, construction, human resources and the environment.

In principle, anyone can attend a court hearing in session. However, as an exception, a court may keep the hearings confidential for national security or public policy reasons.

A copy of the court’s decision can be made available to the public. However, the personal information of the relevant parties included in the court’s decision shall be redacted before disclosing the decision to the public. The pleadings and other documents from the case are usually not available to the public. Only the parties to the dispute or others who can prove that they have a legitimate interest in the case are allowed access to these records.

If information regarding privacy or trade secret is stated in the document, the relevant party may ask the court to limit access to such document, by submitting an application to the court.

Under the Korean court system, except for the cases being heard by single judge panels (for which cases family members or employees may act as legal representatives subject to the court’s approval), legal representatives must be an attorney qualified in Korea, and foreign attorneys are not allowed to represent a party in civil actions. While anyone can attend a public court hearing, the audience has no right to participate.

Third-party funding is not a concept that is well-known in Korean litigation and there are no laws or regulations on this type of arrangement yet. However, the Attorney-at-Law Act prohibits a lawyer from becoming an assignee to any rights in dispute.

See above, 2.1 Third Party Litigation Funding.

See above, 2.1 Third Party Litigation Funding.

See above, 2.1 Third Party Litigation Funding.

See above, 2.1 Third Party Litigation Funding.

Except in criminal cases, conditional or contingency fee arrangements are allowed in South Korea, and are frequently used in practice. Various legal fee structures including, but not limited to, hourly rates and task-based billing can also be used.

However, if the court determines that the amount of an agreed-upon legal fee is unreasonably excessive, it can reduce a legal fee otherwise payable to counsel as per the arrangement between counsel and the client, to an amount as deemed “fair and reasonable” by the court.

See above, 2.1 Third Party Litigation Funding.

In general, there are no pre-action procedures in place in Korea. 

However, in certain proceedings, there are preconditions for filing a lawsuit that must be met in accordance with the relevant provisions of the law. Examples are as follows:

  • When initiating a class action relating to securities, the representative plaintiff must obtain the permission from a court in advance.
  • In order to file a tax revocation lawsuit, the plaintiff must exhaust their remedies by undergoing a tax administrative trial.

The general statute of limitations under the Korean Civil Code is ten years. A shorter period applies to claims arising out of commercial transactions in accordance with the Korean Commercial Code, which is, in principle, five years. In addition, the Korean Civil Code, the Korean Commercial Code, and other special laws stipulate the special statute of limitations applicable to certain types of claims. 

The statute of limitation starts on the day immediately following the date the claim could have been exercised (namely, the due date of each account receivable or, if the due date is not decided in advance, the day the obligation accrued). For claims regarding breach of agreements, the statute of limitation starts to run from the date of such breach.

Tort claims must be brought within the following periods (whichever ends earlier):

  • within ten years from the date the tort was committed;
  • within three years from the date the claimant becomes aware of damages suffered and the identity of the tortfeasor.

With regard to the three-year period statute of limitations for torts, the Korean Supreme Court has interpreted the provision as requiring “actual and concrete awareness” of the elements of tort, including occurrence of injury, existence of unlawful conduct, and proximate causation between the injury and the unlawful conduct. 

A person residing outside of Korea may be a defendant of a lawsuit in a Korean court depending on the circumstances. When determining the jurisdiction over a case involving a foreign component, the Korean court reviews whether the party or dispute has “substantial relevance” to Korea. The court takes into consideration the standard of Korean laws, the interest of the parties in terms of fairness, convenience and predictability, and the interests of the court and the state for prompt and efficient trial and effective enforcement of the judgment.

The criteria for determining jurisdiction are as follows:  In principle, the competent court of the jurisdiction to which the defendant has certain relations will have jurisdiction over the case; for instance, address (for a person), the place of the main office (for a corporation), and the location of the Supreme Court (ie, Seoul) (for a foreigner or a foreign corporation that never had an address in Korea).

  • In consideration of the plaintiff’s convenience, additional jurisdiction is also allowed in the following cases: in the instance of monetary claims, the competent court of the district where the creditor resides has jurisdiction. Tort claims can be brought to the court with jurisdiction over the place where the tortious action has occurred. Real estate claims can be filed with the competent court of the location of the real estate. If multiple claims are pursued in one lawsuit, they may be brought to a court with competent jurisdiction over at least one of the claims.
  • Even if the two provisions above are not met, unless the case involves an issue for which certain specified courts have exclusive jurisdiction (eg, the cases involving certain corporate matters for which only the local court has jurisdiction), then jurisdiction can be recognised in the following cases: (i) if the parties have agreed to the jurisdiction of the district court in writing, or (ii) if the plaintiff filed a complaint to the court that does not have a jurisdiction but the defendant does not raise an objection regarding the jurisdiction and proceeds with presenting his/her defence at the hearing.

Complaints must clearly state (i) the name, address, and other identifiable elements of the parties, (ii) the tenor of claim, and (iii) cause of action. The complaint may be amended during the course of the litigation proceedings through a written submission under the below conditions: 

  • the underlying factual basis of the claim remains unchanged;
  • the amendments do not result in significant delays to the proceedings; and 
  • the amended claims do not fall within the exclusive jurisdiction of a different court. 

As a practical matter, it is not uncommon for plaintiff(s) to amend the claim amount after filing a complaint. 

The plaintiff is not required to present all the relevant facts, arguments and evidence in the complaint. Parties may submit the arguments and/or evidence at an appropriate pace as the case proceeds. However, the court may not allow submission if the court deems that the relevant party was submitting arguments and/or evidence late to delay the case and such actions were due to wilful misconduct or gross negligence. 

In Korea, the service of process is done ex officio, that is, by the court. In principle, service of process is completed when a court officer or a mailman delivers the documents directly to the person to be served. However, under the Civil Procedure Act of Korea (“KCPA”), if certain conditions are met, service of process can be done by leaving the documents at or sending the documents to the place where service should have been completed. If the address of the defendant is unknown and there is no other way to serve, the court may allow the documents to be served through public notice.

The mechanism of service of process for a party residing outside of Korea depends on whether he/she resides in a member state of the “Hague Convention on Service” (the Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matter). If the foreign party resides in a member state, the process under the Hague Convention on Service will apply. Otherwise, the service will be done in accordance with the process set by the KCPA, by which the service of the relevant court document shall be entrusted by the presiding judge to the Korean ambassador, minister or consul stationed in that foreign country or to the competent government authority of that foreign country. If certain conditions are met, service of process to a person or a corporation with address in a foreign country may be done through public notice.

Once the defendant is served with the complaint, the defendant is required to submit an answer to the court within 30 days from the date of service of the complaint (except for when the service is done through a public notice), which is extendable. The defendant is not time-barred from submitting an answer even after this 30-day period. However, if a defendant does not submit a written answer to the complaint at all, the KCPA empowers the court to issue a default judgment without holding a hearing. Under a default judgment, the court may deem that the defendant has admitted the facts and claims set out by the plaintiff.

In Korea, the class action system recognised in the US is available only to claimants who sustain damages from certain types of securities transactions. There have been efforts to expand the area to include product liability in particular, but such efforts have not resulted in actual legislation yet. 

The Securities-Related Class Action Act provides that class actions can be used to recover certain types of securities-related damages, including damages arising from false disclosure (false disclosure in registration statements or prospectuses, annual reports and other periodic reports, or the audit report), insider trading, or market manipulation. 

Similar to the class actions in the US and some common law jurisdictions, there must be a certifiable class and their claims should have common questions of law and fact. To be more specific, in order to initiate class actions, the following requirements must be met and the class needs to be certified by the court:

  • the suit must involve 50 or more class members and at the time of the action that constitutes the cause of the lawsuit, the sum of the shares held by the class members must be 1/10,000 or more of the defendant company’s total number of outstanding shares.
  • the claims of the class members must have common questions of law and fact.
  • the suit must constitute an appropriate and effective means of realising the rights of the class members or protecting their interests.

There is only one case in which the lower court’s certification of class has been affirmed by the Supreme Court, since the Securities-Related Class Action Act came into effect in 2005. This case was brought by the investors of equity-linked securities (ELSs) claiming damages from financial institutions that had provided hedges to the ELS issuers. 

In addition to the Securities-Related Class Action Act, qualified consumer groups or organisations are allowed to bring legal action on behalf of consumers under the Framework Act on Consumers against enterprises/companies. The procedure was modelled after the Verbandsklage under German law, and generally seeks injunctions and corrective measures as remedies, rather than damages for individual consumers.

Several bills have been proposed recently in the Korean National Assembly for a more general class action statute, including a class action statute for consumer claims and antitrust claims. These are currently under review.

Further, even in the absence of legislation permitting US-style class action lawsuits, mass plaintiff litigation is common in Korea. The prevalence of such litigation may be attributed to: (i) the ease with which attorneys can recruit plaintiffs with similar claims, increasingly through the internet; and (ii) the heightened awareness of consumers and the general public regarding their rights, helped in part by the publicity surrounding certain high-profile cases.

There are no particular requirements when providing a cost estimate of the potential litigation to the client.

There are no interim application/motions available before a trial or hearing of a claim for the purpose of case management. As a temporary remedy before the court renders a judgment, a plaintiff may file for preliminary attachment or provisional injunction. These procedures are not a part of the main action.

There is no system under Korean law that would be comparable to a “motion to dismiss” or a “motion for summary judgment” as in the US. If the claim of the plaintiff is groundless, the defendant may point this out in an answer or a brief and make such arguments at the hearing. Even in cases when the defendant fails to file an answer and the court could deem that the defendant admitted the claim of the plaintiff without holding a hearing, the court shall dismiss the plaintiff’s claim in the event the claim of the plaintiff itself is groundless. 

There are no dispositive motions (ie, application for summary determination or judgment) available in Korea that can be made before a trial.

An interested third party may join a lawsuit that is pending between the plaintiff and the defendant and become a party to the case under the following circumstances: 

  • if the third party claims that the subject matter of the lawsuit belongs to the third party; 
  • if the rights of the third party are likely to be infringed by the outcome of the lawsuit; or 
  • if the dispute can only be resolved when a third party joins the proceedings. 

A third party who has a legitimate interest in the lawsuit can also participate in the lawsuit as an intervening party for the purpose of assisting one of the parties to the lawsuit. Given that an intervening third party may participate in the lawsuit only to support one of the parties, the intervening third party will not be considered a litigant of the lawsuit, and will not be allowed to take actions unfavourable to, or inconsistent with, the relevant supporting party. 

A third party who intends to join or participate in the pending lawsuit shall express his intention to the court orally or in writing and must receive the court’s approval. 

The parties may have the effect of the court decision extending to a third party as if the third party participated in the lawsuit, by notifying the third party that the relevant lawsuit is pending in the court. Either a plaintiff or a defendant may ask the court to notify a third party who has a legitimate interest in the current case of the fact that the lawsuit is currently pending at the court. This would provide the third party with an opportunity to participate in the pending case as an intervening third party. This does not mean that the third party who has received the notice is required to participate in the pending proceeding. The third party may freely choose whether to participate in the pending lawsuit. Regardless of whether the third party participates in the lawsuit, however, once the third party has received the notice, in a subsequent litigation between the third party and the party of the previous lawsuit, the third party shall be prohibited from making arguments that are contrary to facts and/or legal reasoning that constitute the basis of the judgment in the previous litigation. For this reason, the third party typically elects to participate in the pending case when the third party is informed of the fact that the relevant lawsuit is pending. 

The parties are required to submit a written application to the court to issue the notice, after which the court shall serve the notice to the third party and the counterparty. 

When the plaintiff does not have a presence in Korea, or it is obvious from the complaint, written submissions, or other case records that the plaintiff’s claim is groundless, the defendant may motion the court to order the plaintiff to pay security for litigation costs. In order to be eligible to apply for the security, the defendant should not have submitted a substantive answer responding to the claim. Even without the defendant’s application, the court may order the plaintiff to pay security for litigation costs ex officio.

The court shall decide the level of security based on the total amount of costs that the defendant is expected to spend at each level of the lawsuit. In practice, the security does not normally exceed 4% of the claim amount. Subject to court approval, the security for litigation costs may be satisfied by way of surety bond. In such case, the cost actually borne by the plaintiff is less than 1% of the surety (security) amount.

If the plaintiff fails to pay the security within the period set by the court, the court may dismiss the claim without holding a hearing.

Interim applications/motions are not considered as separate procedures. As such, even if a party applies for interim applications/motions, the costs are not calculated separately. The court must consider the amount of the costs incurred in such proceedings when allocating the costs of the entire proceeding in the judgment.

There is no limited or fixed timeframe for the court to review an interim application/motion. It could take a few days to a few weeks.

Generally speaking, the scope of discovery in Korea is substantially limited compared to some common law jurisdictions, including the US. All forms of discovery are conducted by and are under the direct supervision of the court. For example, a party cannot directly ask the other party to produce documents or witnesses. All requests for discovery must be made to the court and must be approved by the court. The judge has wide discretion on whether to allow discovery, the discovery method and the scope of discovery with respect to the parties and also to third parties. Accordingly, although discovery is relatively limited in the general sense, there is some room to obtain evidence through discovery. 

When a party fails to comply with the court’s document production order, the court may draw an adverse inference from the lack of action. That is, the court may deem that the allegations of the requesting party set out in the requested document are correct, and rely on it. However, the court is not obliged to do so. The same applies when a party, upon receiving a document production order, intentionally destroyed the document or made it unusable. The court may then draw an adverse inference from the document which was not produced. If it was a third party which did not comply with the court’s document production order, the third party shall be subject to administrative fines of up to KRW5 million.

Document production orders can be made to third parties that are not named as a plaintiff/claimant or defendant. In the event that the document holder is a third party, the court must conduct examination by asking relevant questions to the third party holder or its designee before deciding whether the document in question is to be produced. The court may order document production only after it has completed its examination of the third party in possession of the document or its designee.

The parties in possession of the relevant document shall submit the document to the court so that the documents can be evidence that the court can then rely on. 

If the document is in the possession of the counterparty or a third party who are under the obligation to produce such document, the party may request the court to issue a document production order. Such request must clearly indicate the following: (i) the document requested, (ii) the contents of the requested document, (iii) the document holder, (iv) the fact to be proved by the document, and (v) the grounds by which the document should be produced.

Based on the party’s application, the court may order the document holder to disclose a list of documents which he has in his possession, and/or documents he intends to submit as evidence that are related to the party’s application.

In general, the obligation to produce documents is recognised in the following circumstances: 

  • when the other party possesses the document that it cited during the lawsuit; 
  • when the applicant party is legally entitled to request the holder of the document to deliver it or make it available for inspection; or 
  • when the document has been prepared for the benefit of the applicant, or prepared as a result of the legal relationship between the applicant and the holder of such document. 

Even if the document holder is not under obligation to produce the document, a party may still ask the court to make a formal request that the document holder submit the relevant document to the court. This procedure is often used for a document that is in possession of a state or governmental entity. When requested by the court, the document holder has to submit the requested document to the court, unless there are justifiable reasons not to do so. 

This is not applicable.

According to the KCPA, documents containing the advice/work product of lawyers, patent attorneys, certified accountants, tax accountants, doctors, pharmacists, priests etc who have a duty of confidentiality under applicable laws are protected from disclosure and are not subject to document production orders of the court. Advice from an in-house lawyer who is locally licensed could also be considered privileged to the extent that the contents of the advice satisfy the above requirement. It is the prevailing view that the term ‘lawyer’ in the relevant provision of the KCPA indicates lawyers licensed in Korea.

The document holder may refuse to produce the document in the following cases:

  • government/official documents; 
  • documents which may incriminate or defame the requested person or his or her relatives; 
  • documents which he or she has a confidential obligation or which contains trade secret information; or,
  • a document prepared by the requested person for his or her own use (such as diary and notes).

If there is risk of confidential information being leaked in the process of reviewing whether there is any legitimate basis for refusing production of the document, the court may, based on its discretion, hold an in camera session and order the document holder to first submit the requested documents to the court for its review. In such case, the court is prohibited from disclosing those documents to other persons, including the parties to the case during its internal review. Neither the parties nor their counsels can participate in this "in camera proceeding."

One can seek provisional remedies, even before filing of the complaint, in the form of: 

  • preliminary attachment; or 
  • provisional injunction. 

A preliminary attachment is used to preserve and freeze the property or assets of a debtor (who is often the defendant in a lawsuit). This serves as a security for discharge of a monetary payment obligation by the defendant. The courts will allow preliminary attachments if the applicant establishes a need to preserve the assets, a prima facie case in its favour, and shows that the assets are owned by the debtor (defendant).

In case of the provisional injunction, there are generally two types: 

  • The most common type of provisional injunction is to temporarily prohibit the debtor from disposing of his or her property which is the subject matter of the dispute. 

The injunctions may be issued in cases where, if the existing situations are altered, the party becomes unable to exercise his rights, or there is concern over substantial difficulties in exercising it.

  • The other type of provisional injunction is to temporarily fix the position of the disputed right. 

This type of provisional injunction is issued when the petitioner is likely to incur substantial injury before the court can render a final judgment in its favour. This type of preliminary injunction is different from other types of provisional remedies in that instead of securing the future enforcement of a favourable judgment, it seeks to protect the petitioner from present injuries caused by delays in the enforcement of his rights.

Korean law and jurisprudence is silent on whether anti-suit injunctions, barring a parallel litigation in a foreign court, are allowed. The practice of filing anti-suit injunctions or preventing parallel proceedings from commencing in courts outside of Korea is unknown in practice.

The court usually issues a preliminary attachment order within two to three weeks from the application. Depending on the urgency of the matter, a decision may be issued within one to two weeks.

A provisional injunction order, depending on the urgency of the case, may be rendered within a month of the application. It could take one or two months longer if the court decides to hold a hearing. An out-of-hours arrangement is not available in Korea.

According to the Civil Execution Act, an injunctive relief can be obtained on an ex parte basis without hearing the case from the parties. However, for injunctive orders in which the temporary position against the disputed relation of right will be fixed, the court shall schedule a court hearing, unless the purpose of the injunctive order cannot be achieved if the parties wait until the hearing is held.

The applicant can be held liable for damages suffered by the respondent, if the respondent succeeds in the main action. 

The court may order the applicant to provide an adequate amount of security, when the court issues an injunctive relief. The same applies when the injunctive relief is granted ex parte.

In principle, the preliminary attachment is limited to assets in Korea as the Korean court does not have jurisdiction to grant application to attach assets outside of Korea. However, in the case of monetary claims, the defendant may preliminarily attach a claim even if the third party debtor resides outside of Korea.

A provisional injunction over a subject located outside Korea cannot be granted, unless the Korean court has jurisdiction over the disputed subject located abroad.

In principle, preliminary attachments could be made only on the defendant (debtor)’s  property, and not on the property of third parties. However, if the subject asset constitutes a claim that the defendant has against a third party debtor, the court may order a third party to refrain from performing its payment obligation to the defendant while the case is pending. 

There are no civil or criminal sanctions applicable to a respondent who fails to comply with the terms of an injunction under Korean law. However, the court may state in the injunction order that the respondent must pay a fine if he or she violates a provisional order of continual forbearance.

A civil action begins with the plaintiff filing a complaint with the court that has jurisdiction over the case. The court will then serve a copy of the complaint on the defendant. Once the complaint is served, the defendant has 30 days to submit an answer to the court although the time limit can be extended at the discretion of the court, upon request by the defendant. There is no set timeframe for subsequent written submissions; the parties are free to make additional written submissions and file exhibits until close of the hearing.

Once the reply by the defendant is submitted, the court may schedule a preparatory hearing to determine the factual and legal issues relevant to the dispute and whether parties are willing to enter into settlement or conciliation proceedings. Preparatory hearing is at the discretion of the court, which will determine whether such hearing is necessary considering the size and complexity of the case and, depending on the number of issues to be dealt with, there can be multiple preparatory hearings. During the course of the preparatory hearings, the parties will endeavour to submit all written submissions and exhibits, and will petition for fact/expert witnesses who will be examined at the hearing.

If no preparatory hearings are held, or upon the closing of the preparatory hearing, the court will typically hold more than one main hearing. The interval of each hearing may differ depending on the complexity of the case.

Witness/expert examination can be pursued upon the request of a party. Witnesses/experts normally provide oral testimony at the hearing, although in some cases the court may allow a witness/expert to provide testimony in writing. A party is entitled to cross-examine the witness/expert, and the court will ask questions after the examination of the parties.

Korean courts are increasingly encouraging oral testimony at hearings, highlighting the benefits of oral arguments. Major issues can be highlighted through oral arguments, and the parties, who usually have little knowledge of the law, are able to better understand the issues. Such parties are more likely to ultimately accept the conclusion of the court. Nevertheless, written submission and documentary evidence still hold great importance in the court. 

Once the hearing is closed, the court will schedule the date for announcement of its judgment, which is typically two to six weeks after closure of the hearing.

In Korea, it is unusual for a court to conduct a concentrated trial or hearing over a number of consecutive days or weeks. Instead, the court holds short, regular hearings usually until the parties agree that they have submitted all the arguments and evidence they have.

Although the court has discretion to set the schedules for procedure, the parties may request the court to provide them sufficient time to prepare and to extend or change the scheduled dates from time to time. The court usually allows such changes as long as it is not deemed to be an undue delay of the case.

The presiding judge may, if deemed necessary, schedule a preparatory hearing and ask the parties or their legal counsel to attend this session. It is often utilised to identify which factual and legal issues are disputed and need further examination at a court hearing. The presiding judge may schedule multiple preparatory hearings, but the whole period shall not exceed six months.

There is no jury trial in civil actions in Korea. Only for a limited number of criminal cases, Korea has adopted a public participatory trial in 2008 which adopts some of the features of a jury trial. Members of the public participate in the hearings of the criminal proceedings and can offer a collective opinion on the verdict of the criminal case. The court, however, is not bound by their opinion.

There are no strict rules on admissibility of evidence in civil action in Korea.

Judges may determine whether the facts alleged by a party are true on the basis of its full discretion and there are no restrictions on the form of the evidence that can be relied upon by the judge. Documents prepared after the commencement of the case or a copy of the document are also acceptable. Even a document produced in the course of settlement discussion is admissible as evidence.

An expert may provide testimony in Korean civil proceedings, upon appointment by the court. If there is need for an expert, a party may file an application with the court, explaining the need for expert testimony and the matters requiring expert’s review and opinion. The applying party needs to pay the court expert's costs in advance. The court may also appoint an expert on its own.  A party can challenge the court’s appointment if there are circumstances that would prevent the expert from providing expert analysis in good faith.

Expert analysis can be provided either in writing or orally, and will be examined by the judge and the parties. Although an expert’s opinion is not legally binding, the court will often respect the outcome of the expert examination or the expert report. The parties may provide comments on the expert opinion, although it is up to the judge’s discretion whether to take them into account.

A party may submit an expert report from a party-appointed expert. Such an expert report will be treated as a documentary exhibit and not expert evidence. In general, more weight will be given to a court-appointed expert than an opinion of a privately retained expert.

Civil court proceedings are, as a rule, open to public. The court may limit public access to a hearing if it considers that this might endanger national security, public peace and order, or good public morals. Even in a closed hearing, the presiding judge may specifically allow persons to stay in the courtroom if deemed proper.

A copy of the court decision is available to the public and many of court decisions are published and available on the Supreme Court’s website. The court shall redact personal information contained in a judgment before providing a copy to any third party. 

Although the court’s decisions are generally made public, the pleadings and other documents from the case are usually not available to the public. Only the parties to the dispute or other parties that can establish that they have a legitimate interest in the case are allowed access to these records.

One can access the Supreme Court website and check the status of the case (to see whether there is a hearing scheduled, when a party submitted pleadings to the court, whether claims have been withdrawn, etc) if one knows the case number, the court handling the case, and the name of at least one party to the case.

Generally speaking, there is a high level of intervention by the judge during civil case hearings in Korea. While the parties have the burden of making arguments and supporting such arguments with evidence, the presiding judge can seek clarification from the parties by questioning the parties about factual or legal matters and by urging the parties to present further evidence.

In addition, the judge must investigate and determine sua sponte not only procedural matters (such as elements for a cause of action), but also certain substantive matters (for example, the degrees of contributory negligence between the parties, quantification of alimony).

A date of the court decision will be separately designated, usually within two to six weeks from the date of the last hearing. For small cases with a claim amount of KRW30 million or less, a judgment may be rendered immediately after the final hearing on the same day.

Once the plaintiff files a complaint to the court, the court will serve the complaint together with a guide on how to respond to the defendant within one to two weeks. The defendant is required to file an answer to the court within 30 days upon receipt of the complaint. 

If deemed appropriate, the court may schedule a preparatory hearing after the exchange of the complaint and the answer to the complaint.  If the preparatory hearings are held, the court will try to identify key issues of the case at the preparatory proceedings before it holds the main hearings. It is common that the court schedules multiple oral hearings, each with an interval of four to six weeks. The number of hearings may depend on the complexity of the case and, especially, the number of witnesses.

Once the hearing is closed, the court will issue its judgment on the case, typically within two to six weeks. Usually the court will deliver a copy of the judgment to the parties or their counsels. It generally takes one to two weeks for the written judgment to be delivered.

Appeal to the High Court must be filed within two weeks after receipt of the written judgment from the court of first instance. Similarly, an appeal to the Supreme Court must be filed within two weeks after receipt of the written judgment from the court of appellate level. Proceeding in the appellate level is the same as in the court of first instance. However, at the Supreme Court there is usually no oral hearing and the proceeding is conducted based on written submissions only. The overall procedure in the first instance court will normally take from eight to sixteen months, in the appellate level from six to twelve months, and in the Supreme Court from four months to two years. But this may differ depending on the subject matter and nature of the specific case.

In Korea, both out-of-court and in-court settlements are available. The settlement made out of court does not require an approval from the court.

The parties may settle a case at any time during the course of a civil proceeding by making mutual concessions. As in the case for out-of-court settlements, the parties do not need to obtain an approval from the court in order to enter into a settlement agreement. If the parties have successfully settled the case, this will be officially recorded in a court protocol which has the effect of a final judgment. Hence, such settlement protocol is equivalent to a final judgment and is fully enforceable.

During the course of a civil action, the judge may recommend a settlement. The judge acts as a mediator and provides a forum for the parties to explore and discuss the possibility of a settlement. If the parties do not reach autonomous decision as to settlement, then the court has power to make a recommendation order for settlement. Such settlement recommendation order should be formally served to the parties. Unless any party files objection to the court’s settlement recommendation order within two weeks from the date of the service of such order, the objection is time-barred and the settlement recommendation order shall have the same effect as a final and conclusive judgment. Accordingly, the order is enforceable. If, however, an objection is raised by either of the parties to the settlement recommendation ordered by the court, the proceeding will return to its status prior to the order.

The terms of an in-court settlement will be recorded in the hearing protocol. The pleadings and other documents from the case records are usually not available to the public, but the parties to the case or others who can prove that they have a legitimate interest in the case are allowed access to these records.

If information involving privacy or trade secret is stated in the document, the relevant party may ask the court to limit the access to such document, by submitting an application regarding the confidentiality of the document.

Once a settlement is made and is recorded by the court in the protocol, such protocol holds the same status as a final and conclusive court judgment. Therefore the settlement is fully enforceable.

Since a settlement protocol has the same effect as a final and conclusive judgment, unless there is a statutory ground for a retrial, such settlement protocol cannot be revoked or set aside.

There are three types of dispositive sections that a Korean court can issue: (i) a judgment ordering performance of obligations; (ii) a declaratory judgment (ascertaining rights or obligations of a party); and (iii) a judgment forming or creating legal relationships.

Courts may make rulings for the payment of pecuniary damages, for both economic and non-economic damages.

Punitive damages are not allowed under Korean law. However, as an exception to this principle, the new Products Liability Act which became effective as of 19 April 2018 provides for punitive damages up to three times of the actual damages/losses in cases where the manufacturer knew of the defects in its product but failed to take necessary measures to rectify such defect, which resulted in death or serious bodily injuries.

There are no particular rules limiting the maximum amount of damages. However, the court may at its discretion deduct the amount of liquidated damages sought by a party if it considers that the amount levied is unduly excessive.

Pre- and post-judgment interest is usually sought by the parties and recognised by the court. Typically a plaintiff will ask for pre-judgment interest as applicable under contract or law. Unless agreed otherwise by the parties, the statutory interest rate applicable for commercial claims is 6% per annum and for general civil claims 5% per annum.

There is also a post-judgment interest applicable under the relevant law. Under this act, interest accrues on the amount of the money judgment from the time the unsuccessful defendant was served with the complaint, or if the court finds that the defendant had justifiable grounds to dispute the complaint, from the time of the court’s judgment. The current applicable post-judgment interest rate under this act is 15% per year. Usually, if the plaintiff is successful on the entire claim amount, the defendant is not construed to have had justifiable grounds to dispute, and the 15% rate of interest starts to accrue from the day following the date on which the complaint was served.

Once a judgment becomes final and conclusive, a party can file an application to the courts for compulsory auction or compulsory administration, or seizure of the obligor’s property, depending on the nature of the creditor’s right that has been recognised by the judgment. A party can also have a third party perform the obligor’s obligation instead, and have the obligor pay for the costs. A party can also apply to the court to set a specific date by which the obligor needs to perform its obligation and order compensation in case such performance is delayed.

A judgment is, in principle, enforceable when it is not subject to further appeal. However, in practice a judgment is most often enforceable even before it becomes final and non-appealable because the first instance court often issues an order allowing provisional enforcement.

In order to enforce a foreign judgment in Korea, a party must obtain an enforcement judgment from the Korean court. 

Korean courts recognise and enforce the foreign judgment if the following conditions are met:

  • the foreign judgment (including order, decision, etc) is final and conclusive;
  • the foreign court’s jurisdiction is recognised under Korean law or treaties;
  • the defendant (ie, the Korean party) was properly served with the complaint (or equivalent document), summons or any orders in a lawful manner (other than by public notice or similar methods) in advance so as to have sufficient time to prepare his/her defense, or the defendant participated in the foreign proceedings without having been served;
  • the foreign judgment does not violate the public policy of Korea; and
  • a Korean court judgment would be similarly recognised and enforced by the courts in the foreign country in question.

If a foreign judgment on damages is contrary to Korean law or the basic policy of international treaties Korea entered into, the court may not recognise the whole or part of the judgment. In doing so, the court shall consider whether the damages awarded by a foreign court include litigation costs – including, but not limited to, legal fees.

If a decision of the court of first instance (district court) is appealed, the court of appellate level conducts the proceedings de novo (afresh). The decision of the appellate court can be appealed to the Supreme Court only on questions of law.

Appeal to the appellate court

The grounds for appeal to an appellate court under Korean law are much broader than under most common law jurisdictions. Either party can make an appeal on both legal and factual matters. An appeal must be made by filing a written motion of appeal before the lower court within two weeks from the original judgment being served. Parties are allowed to introduce new evidence and arguments, and the court considers the case de novo and upholds or overturns the lower court’s judgment as necessary.

Appeal to the Supreme Court

A subsequent appeal to a judgment of the appellate court (ie, the High Court) can be made to the Supreme Court as the last resort. Unlike an appeal to the High Court, the grounds for appeal to the Supreme Court are strictly limited to questions of law, such as a violation of the constitution, acts, administrative decrees, or regulations, which has affected the judgment. 

In addition, the Supreme Court shall dismiss a case without hearing the case any further if any of the following grounds are not found in an appeal: 

  • if the judgment of the appellate court is in violation of the constitution; 
  • if the determination on whether an order, rule or disposition is unlawful is wrong; 
  • if any act, order, rule or disposition has been interpreted contrary to a precedent of the Supreme Court; 
  • if a relevant precedent of the Supreme Court on the interpretation of any act, order, rule or disposition does not exist or a precedent of the Supreme Court needs to be altered; 
  • if there exists a serious violation of any act or subordinate statute; or 
  • if there exists any ground prescribed in the provisions of Article 424(1)1 to 5 of the KCPA.

A party who wishes to appeal must file a written motion of appeal before the lower court within two weeks from the original judgment being served. 

When appealing to the appellate court, the appealing party is not required to submit a written statement that specifies the grounds and the scope of appeal. However, when appealing to the Supreme Court, if the appellant has not stated the grounds for appeal in the petition, he or she must submit a written statement of grounds of appeal within 20 days of receiving a notice from the Supreme Court that the case records have been transferred to the Supreme Court. If the appellant fails to comply with this deadline, the appeal will be immediately dismissed by the Supreme Court without further hearing the case.

An appeal to the appellate court can be made on both points of law and fact. The appellate court conducts the proceedings de novo and both parties may present new arguments and submit new evidence. However, the appellate court can only hear the case to the extent that it is appealed by either of the parties.

An appeal to the Supreme Court is limited to legal matters only. Thus, in principle, the facts of the case will not be re-examined by the Supreme Court. Exceptionally, facts relevant in determining legal issues may be revisited by the Supreme Court to the extent necessary.

There are no statutory provisions that empower a Korean court to impose any particular conditions on granting an appeal.

The appellate court may uphold or overturn the lower court’s judgment at its own discretion.

In Korea, the court will order the allocation of litigation costs in the judgment. In principle, such costs are borne by the losing party. In a case where a party has only partially succeeded, the court may allocate the costs at its discretion between both parties. In practice, these costs are often apportioned to each party in proportion to the success achieved by each party, but the court is not required to do so.

Court costs generally consist of stamp taxes (filing fees), service of process fees, and other out-of-pocket expenses (per diem fees for witnesses, photocopies, etc) and attorneys’ fees.  It should be noted that the entire amount of the actual legal fees incurred by the parties is not recognised as litigation cost, but only a fixed amount calculated according to a formula specified in the court regulations is deemed as a litigation cost that can be recovered from the other party. This amount is typically nominal compared to the actual incurred legal costs.

In general, the court decision, which is not yet final and conclusive, only states the ratio of the allocation of litigation costs and the actual amount of costs to be borne by each party is decided after the judgment becomes final and conclusive. The court delivers to each party a certified copy of the statement of costs before fixing the amount of costs of the lawsuit, and provides them an opportunity to comment on the copy and to submit their statement of costs and other documents necessary in order to substantiate the amount of costs. If one of the parties fails to submit the documents within the fixed period, the court may render a ruling based only on the submission of costs by the requesting party.

In a case where a party has only partially succeeded, the court may allocate the costs at its discretion between both parties. In practice, these costs are often apportioned to each party in proportion to the success achieved by each party, but the court is not required to allocate costs in this manner and may choose to allocate costs as it deems appropriate.

The Korean court does not award interest on the litigation costs.

The statistics in Korea show a remarkable increase in the use of alternative dispute resolution as a method for resolving disputes, including mediation and arbitration. In particular, arbitration as a means of settling commercial disputes has steadily become more popular for cross-border disputes. The increased use of arbitration in Korea is based on several factors, including an increase in Korean companies' involvement in international transactions and the general tendency of the South Korean courts to enforce arbitral awards.

The court tends to encourage resolving disputes which are brought to the court through judicial conciliation. This can be conducted by a judge presiding over the litigation, by a different judge (solely for the purpose of the conciliation), or by a conciliation committee comprising one judge and two or more private citizens. This is, however, not compulsory and the parties are free to object to the recommendation of the court. There is also no particular sanction for the parties who do not wish to settle their dispute under an ADR mechanism.

The Korean Commercial Arbitration Board is the primary institution in Korea for the provision of ADR services, and provides both mediation and arbitration services.

The Korean courts also play a significant role in resolving disputes through judicial conciliation. Recently, the Korean courts have established mediation centres across Korea in order to assist the courts by handling mediation cases.

The primary source of law relating to arbitral proceedings in Korea is the Arbitration Act of Korea (the Korean Arbitration Act), which is based on the UNCITRAL Model Law on International Commercial Arbitration (UNCITRAL Model Law). The most recent major revisions to the Korean Arbitration Act were made in May 2016, primarily adopting the 2006 amendments of the 2006 UNCITRAL Model Law, with some variations. One of the key features of this bill is that the provisions empower and enable the arbitral tribunal to issue a wide array of interim measures enforceable by court decisions.

Korean courts are generally open to arbitration, and it is not common for a Korean court to set aside a domestic arbitral award or refuse enforcement of an international arbitral award.

Under article 3 of the Korean Arbitration Act, only the disputes on property rights and those on non-property rights which the parties may resolve through private settlement may be the subject of arbitration. Pursuant to article 36 of the Korean Arbitration Act, the court may set aside the award if it finds on its own initiative that the subject matter of the dispute cannot be subject to arbitration under Korean law, or that the recognition and enforcement of the award is in conflict with the good morals or other public policy of Korea.

Pursuant to article 36 of the Korean Arbitration Act, recourse against an arbitral award may be made only by an application to a court to set aside the award. Any such application must be made within three months of the date on which the party making such an application received a duly authenticated copy of the award.

An arbitral award may be set aside by the court only if the party making the application provides proof that:

  • a party to the arbitration agreement lacked capacity under the law applicable to such party, or the arbitration agreement is not valid under the law selected by the parties to govern the agreement (or, failing any such indication, under Korean law);
  • the party making the application was not given proper notice of the appointment of the arbitrators or of the arbitral proceedings, or was otherwise unable to present its case;
  • the award deals with a dispute not contemplated by or subject to the arbitration agreement, or contains decisions on matters beyond the scope of the arbitration agreement, provided that if a portion of the arbitration award that will be set aside in accordance with this provision can be separated from the remaining portion of the award, only the portion of the arbitration award violating this provision may be set aside; or
  • the composition of the arbitral tribunal or the procedure of arbitration were not in accordance with the agreement of the parties or the Korean Arbitration Act. 

A party may apply to the court for recognition and enforcement of the arbitration award. The party must submit a copy of the arbitral award. If the award is in a foreign language, there needs to be an accompanying Korean translation.

Under article 39 of the Act, where the New York Convention applies, recognition and enforcement of the foreign arbitral award shall be granted in accordance with the Convention.

Where it does not apply, foreign arbitral awards are reviewed in the same manner as foreign court judgments, pursuant to the relevant law. A Korean court will recognise and enforce a foreign award not subject to the New York Convention if:

  • the award is final and conclusive;
  • the jurisdiction of the arbitral tribunal is consistent with Korean law and treaties to which Korea is a party;
  • the losing party received adequate notice of the arbitration and sufficient time to defend its case;
  • the award is not in conflict with the good morals or other public policy of Korea; and
  • the country in which the arbitral award was issued provides reciprocity to Korean judicial decisions and arbitral awards.

Generally speaking, Korean courts are considered to be friendly to arbitration. For example, they have adopted a narrow interpretation of the limits on the enforceability of arbitral awards on public policy grounds. The Korean Supreme Court has ruled that under the New York Convention, considerations of public policy must take into account not only Korea’s domestic situation, but also the need for foresight and stability in international business transactions.

Kim & Chang

39, Sajik-ro 8-gil,
Jongno-gu,
Seoul 03170,
Korea

+82 2 3703 1114

+82 2 737 9091/9092

lawkim@kimchang.com www.kimchang.com
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Kim & Chang Kim & Chang is widely recognised as having Korea’s premier litigation practice, with expertise covering all aspects of disputes including securities litigations, white-collar/regulatory investigations, and commercial litigations involving intellectual property, insurance, M&A, and competition, among others. Our litigation department is comprised of more than 150 seasoned lawyers whose knowledge and experience have helped to achieve the winning track record that is unparalleled in the legal industry. Our lawyers formulate and implement a dispute resolution strategy for each of our clients, focusing on each client’s business needs and goals. Litigations are becoming more complex and diverse and raise new and challenging issues. Kim & Chang is the law firm in Korea that has the resources to assemble customised teams comprised of experienced litigators and industry experts such as accountants, patent attorneys, etc whose expertise will be brought to bear in all aspects of the relevant dispute. Our ability to assemble such customised teams sets us apart from other law firms in Korea and enables us to manage large-scale litigations effectively and efficiently. Kim & Chang’s litigation department strives to maintain its position as the law firm of choice when clients need assistance on dispute-related matters.

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