Korea litigation guide
Youngbo Noh
Bae Kim & Lee
Tel: +82 2 3404 0000; Fax: +82 2 3404 0001; Website: www.bkl.co.kr
Available remedies
The most common form of judicial remedy under the Korean legal system is litigation although there are many cases resolved by alternative dispute resolution methods, such as mediation (also known as judicial conciliation) and arbitration.
Korea follows the civil law tradition and its legal system is similar to those of Germany and Japan. Recent changes in the Korean civil procedural practice include: the introduction of a broader document production obligation imposed on litigants (influenced by the common law concept of discovery); and a heavier emphasis on oral advocacy that signals a departure from the traditional form of pleading mostly through written briefs.
Like many civil law jurisdictions, Korean court procedures follow the inquisitorial model and judges are more involved in fact finding efforts compared to judges in common law jurisdictions. There is no jury system in civil cases, although something similar has been adapted in criminal cases.
When filing a complaint, a plaintiff is required to pay certain court costs which depend on the claim amount. The general rule is that litigation expenses, including legal fees, are to be borne by the losing party. But in practice the amount of legal fees that may be awarded is relatively small because such amount is subject to quite modest Supreme Court caps.
Litigation in Korea is considered affordable and swift. The first instance of a civil case is very often completed within one year after the filing of a civil complaint. There are no separate procedures to hear motions to dismiss cases. Although there may be practical inconveniences for foreign litigants because the only official language in court is Korean, foreign parties do not face any particular disadvantages due to their nationality.
Evidence
Korean civil procedure does not provide for ‘pre-trial discovery’ such as depositions or interrogatories. Even after the revision of the Civil Procedural Act of 2002, courts order production of documents only when the requesting party can reasonably specify the document it seeks. Also in practice there are not that many sanctions against parties that intentionally withhold documents. The absence of a US-style expansive document discovery is also one of the reasons for the low cost of litigation in Korea.
Provisional relief
It is useful for a prospective plaintiff to file provisional attachment on assets of the defendant as means to preserve assets for enforcement and to pressure the defendant in settlement discussions. Provisional attachments are ex parte procedures and a court can render an order without holding a hearing. The applicant must furnish a security deposit to the court, sometimes in the form of cash. Provisional injunctions are also available.
Enforceability of foreign judgments
Procedures for enforcement of foreign judgments in Korea are stipulated under Article 26 of the Korean Civil Enforcement Act. At the same time, the requirements for a final and conclusive foreign judgment to be recognised as valid by the Korean court are stipulated under Article 217 of the Korean Civil Procedure.
The requirements are that: the foreign court has jurisdiction over the matter; a defeated defendant received – pursuant to a lawful method – a service of a summons or a document equivalent thereto; such judgment does not violate good morals and other social order of the Republic of Korea; and there exists a mutual guarantee.
Whether a foreign judgment can be enforced by a Korean court is not always a straightforward question. In some cases, it may result in the foreign party having to litigate the dispute all over again in a Korean court. In contrast, foreign arbitral awards are very easy to enforce because Korea is a signatory to the UN Convention on the Recognition and Enforcement of Foreign Arbitration Awards (the New York Convention) and Korean courts take a friendly attitude towards arbitration.
Arbitration and ADR
Arbitration and court mediation are commonly used for resolving civil disputes. Court mediations (or judicial conciliations) usually occur in the context of a litigation procedure. They are conducted before a conciliation committee composed of a judge or two or more court appointed mediators. If any of the parties object to the conciliation proposal by the judge, the case would be referred back to the ordinary civil procedures.
The Korean Arbitration Act is largely based on the UNCITRAL Model Law and is legislated to encourage arbitration in Korea. The Korean Commercial Arbitration Board is the most prominent arbitration institution based in Korea and has a separate arbitral rules for international cases. In practice, many complex international commercial disputes are resolved by arbitration.