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Litigation

Last verified on Friday 1st June 2018

Korea

Kevin Kim and John Bang

    Overview

  1. 1.Court system
    Describe the general organisation of the court system for civil litigation.
    1. The Korean court system for civil cases consists of three tiers: district courts, High Courts and the Supreme Court. There is also a Constitutional Court, which is at the same level as the Supreme Court in the court hierarchy. The district courts are the courts of first instance. Cases in the district court are heard by a single judge or a panel of three judges, depending on whether the claim amount is greater than 200 million won. The court system also consists of certain specialised courts: the Patent Court, the Family Court, the Administrative Court and the Bankruptcy Court. Within the three-tier hierarchy of the Korean judicial system, the Administrative Court, the Family Court and the Bankruptcy Court fall within the third (lowest) tier, while the Patent Court falls within the second tier. Korea does not have separate federal and provincial courts.

      Appeals from a first instance decision by a single judge of the district courts lie with a three-judge appellate panel of the district court, while appeals from a first instance decision by a three-judge panel of the district courts lie to the High Court. In both cases, further appeals lie with the Supreme Court.

      Judges are appointed by the Chief Justice of the Supreme Court with the approval of the Supreme Court Justices’ Council.

      The Korean legal system does not have the principle of stare decisis, and in principle courts are not bound by the decisions of other courts. In practice, however, courts regularly follow the decisions of higher courts. Supreme Court decisions in particular are very rarely departed from by the lower courts.

      The Korean legal system does not use juries in civil matters. In civil matters, all decisions are made by judges. However, in some criminal proceedings, juries have been used in recent years subject to the written consent of the defendant. But even in these cases, the jury’s findings are not binding on judges and are treated as reference only. The Korean judiciary is independent of the legislative and executive branches of government. 

  2. 2.The legal profession
    Describe the general organisation of the legal profession.
    1. Presently, there are two parallel processes to qualify as a lawyer in Korea. The traditional system, discontinued in 2017, requires candidates to take the traditional bar exam in order to attend the Judicial Research and Training Institute. Candidates are admitted to the bar after successfully graduating from the Institute, which takes two years. The newer system, introduced in 2009, requires candidates to attend three years of law school and then take the new bar exam to qualify as a lawyer.

      The Korean legal profession consists of attorneys-at-law, without any further formal divisions. All attorneys-at-law have the same rights of audience to all the courts.

      Foreign lawyers from certain jurisdictions can practise in Korea after qualifying as a foreign legal consultant under the Foreign Legal Consultant Act of Korea.

  3. 3.General
    Give a brief overview of the political and social background as it relates to civil litigation.
    1. Korean businesses recognise that litigation is sometimes necessary. Therefore, litigation is not viewed as negatively as in certain other Asian cultures. That said, Korea cannot be described as a particularly litigious jurisdiction. Korea does not seem to have many instances of professional or activist plaintiffs.

      The Korean government relies on the quality, speed and affordability of the Korean courts to maintain a good business climate. At the same time, the Korean government has also taken steps to alleviate some of the burden on the judicial system by investing in and facilitating alternative dispute resolution methods such as mediation and arbitration.

      The Korean courts have a sizeable caseload, at all levels of the court system. In 2015, the Korean district courts dealt with 1,345,748 cases, the High Courts dealt with 148,277 cases, and the Supreme Court dealt with 41,871 cases.

      In terms of structural reform, there is currently discussion on the possibility of introducing a new appeals court above the high courts, which would take on the work of hearing a majority of the appeals from the lower courts, freeing up the Supreme Court to dedicate its time and resources to cases of social or political importance.

    Jurisdiction

  4. 4.Jurisdiction and venue
    What are the criteria for determining the jurisdiction and venue of the competent court for a civil matter?
    1. The competent court for a civil matter will be the district court with territorial jurisdiction over the defendant’s place of residence. If the place of residence of the defendant in a monetary dispute is not known or is abroad, the district court with territorial jurisdiction over the place where any of the defendant’s assets are located will have jurisdiction to hear the case. For a juridical person, its principal office or place of business will be considered its place of residence. The district court with territorial jurisdiction over the place where the remedy sought will be performed also has jurisdiction. For a claim relating to real property, the court that has territorial jurisdiction over the property will also have jurisdiction.

      If several district courts have jurisdiction, the plaintiff can initiate proceedings in any one.

      Parties can agree to the jurisdiction of a district court that might otherwise not have jurisdiction to hear a case, unless the case is subject to the exclusive jurisdiction of another court.

      In lawsuits relating to intellectual property rights or international transactions, instead of bringing the suit before the district court that rightly has jurisdiction over the case, a party can bring the suit before a different district court that has territorial jurisdiction over the area where the original district court’s superior High Court is located; the goal being to allow parties to access district courts that are likely to have more experience in these types of transactions by virtue of being located in areas with heavier commerce.   

      There are no special considerations for foreign parties other than the jurisdictional considerations listed above.

  5. 5.Forum shopping
    Does your jurisdiction commonly attract disputes that have a nexus with other jurisdictions?
    1. The Korean courts do not normally attract disputes that have a nexus with other jurisdictions. 

  6. 6.Pendency in another forum
    How will a court treat a request to hear a dispute that is already pending before another forum?
    1. While there does not seem to be an established line of cases regarding the issue, in several cases, district courts have dismissed claims without hearing the merits if it is expected that the judgment to be rendered in a prior ongoing proceeding in another forum will be recognised in Korea.  

  7. 7.

    Deference to arbitration
    How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?

    1. Where a dispute is subject to an agreement to arbitrate, the courts will dismiss the case without considering the merits, unless the arbitration agreement is null and void, inoperative, or incapable of being performed. Provided, however, that the existence of an arbitration agreement should be raised by the defendant no later than the submission of the defendant’s first statement on the merits of the case. 

      However, the Korean Arbitration Act provides that a party to an arbitration agreement may seek interim measures from the Korean courts before or during arbitral proceedings.

  8. 8.Judicial review of arbitral awards on jurisdiction
    May courts in your country review arbitral awards on jurisdiction?
    1. According to the current Korean Arbitration Act which became effective on 30 November 2016, the Korean courts have the power to review jurisdictional rulings of all types, including negative jurisdictional rulings made by the Tribunal. 

  9. 9.Anti-suit injunctions
    Are anti-suit injunctions available?
    1. Anti-suit injunctions are not available in Korean civil procedure.

  10. 10.

    Sovereign immunity
    Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity?

    1. Governments and government-affiliated entities of a foreign country are immune from civil lawsuits. However, if the foreign country, organisation or official have engaged in transactions in their private capacity, they can be sued as private individuals to the extent of the relevant transaction. 

      Furthermore, creditors can enforce a court judgment or arbitral award in Korea against the assets of a sovereign or of a state entity that are situated in Korea only if the claim underlying the judgment/award has arisen out of a private transaction in which the relevant government entity or official acted in their private capacity. Needless to say, where relevant, such enforcement would also be subject to all the other requirements for enforcing foreign judgments or arbitral awards in Korea. 

    Procedure

  11. 11.Commencement and conduct of proceedings in general
    How are proceedings commenced? To what extent will a court actively lead the proceedings and to what extent will the court rely on the parties to further the proceedings?
    1. Proceedings commence once the plaintiff files a complaint with the competent court. Given that Korea is a civil law jurisdiction, the court will actively lead the proceedings, starting from the delivery of the complaint to the defendant, to setting the hearing dates, the taking of evidence, and setting the issues in dispute.

  12. 12.Statement of claim
    What are the requirements for filing a claim? What is the pleading standard?
    1. In filing a complaint, the plaintiff is required to provide (i) the names and other particulars of the parties, (ii) the particulars of its legal representatives or counsel, where applicable, and (iii) the relief sought and grounds for relief. The plaintiff is also required to pay court fees when filing a complaint which are broadly proportional to the claim amount. In terms of the pleadings standard, the grounds for relief include both legal and factual grounds, but detailed substantiation of the grounds is not required at the time of filing the complaint and can be provided later in the proceedings. 

  13. 13.Statement of defence
    What are the requirements for answering claims? What is the pleading standard?
    1. A defendant is required to submit its answer to the complaint within thirty days of the complaint’s receipt. The answer is required to contain (i) the names of the defendant’s legal representatives or counsel, where applicable, and (ii) the defendant’s response to the claims stated in the complaint. In terms of the pleadings standard, detailed substantiation of the responses is not required at the time of filing the answer and can be provided later in the proceedings. 

  14. 14.Further briefs and submissions
    What are the rules regarding further briefs and submissions?
    1. In the course of the proceeding, parties can freely submit briefs and evidence supplementing or amending their initial pleading as they feel necessary, until the close of the last hearing. However, a plaintiff can only amend its claims provided that (i) the overall underlying factual basis of the claims remains unchanged, (ii) the amendment does not cause significant delay to the proceedings, and (iii) the amended claims do not fall within the exclusive jurisdiction of a different court.

      There are no provisions under the Korean Civil Procedure Act (KCPA) allowing amicus briefs, nor are amicus briefs allowed in practice. 

  15. 15.Publicity
    To what degree are civil proceedings made public?
    1. Subject to exceptions for national security or public policy reasons, civil proceedings are open for the public to attend. A copy of the final judgment has to be made available to the public subject only to very limited exceptions. Court filings will only be available upon and subject to certain requirements of usage being fulfilled, provided that none of the parties or the witnesses in the proceedings object to the court filings being made available.

      Videotaping, taking a photograph and broadcasting within the courtroom are prohibited without the permission of the presiding judge. 

    Pretrial settlement and ADR

  16. 16.Advice and settlement proposals
    Will a court render (interim) assessments about any factual or legal issues in dispute? What role and approach do courts typically take regarding settlement? Are there mandatory settlement conferences between the parties at the outset of or during the litigation?
    1. A Korean court may render an interlocutory judgment, if deemed necessary, on certain issues. The interlocutory judgment may not be independently appealed. In practice, however, such interlocutory judgments are rarely issued by the courts.

      Courts take an active role in exploring the possibility of settlement between the parties. While there are no pre-fixed mandatory settlement conferences between the parties, a judge hearing a matter may direct parties at any time to pursue court-administered mediation (the parties themselves can also opt to do so by agreement). 

  17. 17.Mediation
    Is referral to mediation or another form of ADR an option, or even mandatory, before or during the litigation?
    1. The Judicial Conciliation of Civil Disputes Act provides that the parties may refer their disputes to court-administered mediation before or during court proceedings. In addition, where proceedings are under way, the parties’ dispute can be referred to court-administered conciliation/mediation by the decision of the court, which is conducted by the same judge hearing the dispute. If the parties are unable to reach a settlement through court-administered conciliation/mediation, the mediation judge can issue a decision in place of the settlement, which becomes binding if neither party objects to it within two weeks.

      Certain types of disputes may have a statutory requirement of mandatory mediation prior to the initiation of a suit. For instance, certain types of financial disputes, labour law disputes, and consumer-protection disputes have mandatory mediation requirements.  

    Interim relief

  18. 18.Forms of interim relief
    What are the forms of emergency or interim relief?
    1. Courts can grant several types of interim relief. The most common types are provisional injunctions, temporarily requiring a party to do something or refrain from doing something, and provisional attachments, temporarily attaching a defendant’s assets in anticipation of a possible judgment in favour of the plaintiff.

  19. 19.Obtaining relief
    What must a petitioner show to obtain interim relief?
    1. For a provisional attachment, a party needs to demonstrate that it has a prima facie valid claim on the merits and that the provisional attachment is necessary. The application for provisional attachment is an ex parte procedure.

      For a provisional injunction, a party needs to show that it has a prima facie valid claim and that without the provisional injunction, either (i) the execution of a favourable ruling would be impossible or very burdensome, or (ii) the provisional injunction is necessary to prevent imminent loss or harm.

      An applicant may be asked to provide security to the court in the form of a bond and/or cash as a condition for being granted a provisional attachment or provisional injunction.

    Decisions

  20. 20.Types of decisions
    What types of decisions (other than interim relief) may a court render in civil matters?
    1. Courts can grant the following remedies, among others:

      • specific performance;
      • compensatory damages;
      • declarations; and
      • judgments affecting legal relationships.
  21. 21.Timing of decisions
    At what stage of the proceedings may a court render a decision? Are motions to dismiss and summary judgment available?
    1. For each case, multiple hearings are held during which the parties can continue to file briefs and evidence. The court normally renders a written judgment within two to four weeks after the close of the final hearing.

      Korea does not have the equivalent of a summary judgment. Defences effectively amounting to motions to dismiss are available under Korean law. However, they are normally dealt with in the final judgment of the court.

  22. 22.Default judgment
    Under which circumstances will a default judgment be rendered?
    1. Under the Korean legal system, a court may render a default judgment without receiving further written or oral pleadings if a defendant fails to submit a written answer to a complaint within a fixed time limit. In such a case, the court may render a judgment granting the claims set out by the plaintiff. However, this does not apply if the defendant was not served in person but only a public notice was issued.

      Where a party, often a defendant, fails to appear at the date of a hearing, the court will take that party's written pleadings into account and ask the other party to plead his or her case at the hearing.

  23. 23.Duration of proceedings
    How long does it typically take a court of first instance to render a decision?
    1. Korean court proceedings are known for their efficiency. Depending on the complexity of the case, a civil lawsuit will typically take between six months to a year at the first instance from the filing of a complaint to a judgment. This estimate does not take into account the time needed to serve a foreign defendant under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention), which normally takes between three to six months. 

    Parties

  24. 24.Third parties – joinder, third-party notice, intervenors
    How can third parties become involved in proceedings?
    1. A third party may be involved in ongoing proceedings in certain cases. Third parties may participate in proceedings either as a party to the proceedings or as a non-party, depending on the basis on which they have joined or intervened in the proceedings. A third party may join an ongoing proceeding as a party in one of the following cases: (i) the third party claims that the whole or part of the subject matter of the lawsuit, in whole or in part, belongs to the third party, (ii) the rights of the third party are likely to be infringed by the outcome of the proceedings, or (iii) the dispute can only be resolved when the third party joins the proceedings.  In all such cases, the court’s decision will be fully binding on the third party.

      Alternatively, a third party can also be involved in a lawsuit as an intervener for either the claimant or the defendant in ongoing proceedings if it has an interest in the dispute being decided in favour of one of the parties. A third party can also be involved in ongoing proceedings if it is given notice by either party to join the ongoing proceedings as an intervener. In both cases, the result of the proceedings will be binding between the third party and, respectively, (i) the party which the third party joined as an intervener, or (ii) the party that sent a notice to the third party to act as an intervener. 

      Under Korean law, a failure to join a particular third party to an ongoing proceeding does not preclude a litigant in that proceeding from bringing the same or similar claims against that third party later. 

    Evidence

  25. 25.Taking and adducing evidence
    Will a court take or initiate the taking of evidence or will it rely on the parties to request the taking of evidence and to present it?
    1. Parties may apply to the court for the examination of certain documents, witnesses, and other evidence. The courts will decide which documents and witnesses to accept as evidence and may deny all or any of the parties’ requests to adduce evidence. When the court deems it necessary it will take or initiate the taking of evidence. 

  26. 26.Disclosure
    Is an opponent obliged to produce evidence that is harmful to it in the proceedings? Is there a document disclosure procedure in place? What are the consequences if evidence is not produced by a party?
    1. There are no specific provisions under the KCPA which oblige either party to voluntarily disclose or produce evidence that is harmful to it in the proceedings. However, either party may request the court to order the holder of certain documents to produce the documents.

      If a party fails to comply with a court’s order to produce documents or destroys a document with the purpose of obstructing the proceedings, the court may draw an adverse inference against that non-complying party regarding the document sought. If a third party fails to comply with a court’s document production order, a court may impose a fine not exceeding 5 million won on the third-party.

  27. 27.

    Witnesses of fact
    Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?

    1. In general, Korean courts tend to place greater reliance on documentary evidence than on witness testimony. However, where needed, courts may compel a witness to appear before them to testify. A party may submit written witness statements to the court to facilitate the examination of a witness, although this is relatively uncommon in Korean court litigation practice.  

      There is no statutory prohibition in Korea regarding the preparation of witnesses. 

  28. 28.Expert witnesses
    Who appoints expert witnesses? What is the role of experts?
    1. In Korean civil proceedings experts are appointed by the court. A party that wishes to rely on expert evidence must apply to the court to appoint an expert and the court will decide whether expert evidence is indeed required. The expert’s duty is owed to the court and not to the parties. Although a court is not bound by such a court-appointed expert’s opinion, in practice, it will give considerable weight to the expert’s opinion.

      These experts will produce expert (or appraisal) reports, and on occasion give oral testimony and are subjected to cross-examination.

      While parties can submit opinions prepared by party-appointed experts, these opinions are treated as documentary evidence and not expert evidence. In general, courts will give limited weight to the opinions of party-appointed experts.

  29. 29.Party witnesses
    Can parties to proceedings (or a party’s directors and officers in the case of a legal person) act as witnesses? Can the court draw negative inferences from a party’s failure to testify or act as a witness?
    1. Parties to proceedings (or, in the case of legal entities, their directors and officers) can give testimony.

      If a party fails to appear before the court when it has been asked by the court to do so (either on the court’s own initiative or on the request of the other party) or refuses to testify without reasonable justification, the court may accept the other side’s allegations regarding the intended subject matter of the testimony to be correct. However, this does not apply when a director or officer of the party fails to appear.

  30. 30.Foreign law and documentation
    How is foreign law or foreign-language documentation introduced into the proceedings and considered by the courts?
    1. Issues of foreign law are treated as questions of law. And thus a party is not required to establish the substance of the foreign law. Having said that, in practice, it is possible that the court will not have a thorough understanding of the foreign law in question and it is prudent for parties to fully establish their case under the foreign law. Arguments on the substance of the foreign law can be introduced through expert reports and legal literature.  

      All foreign-language documentation is required to be accompanied by Korean translations.

  31. 31.Standard of proof
    What standard of proof applies in civil litigation? Are there different standards for different issues?
    1. The standard of proof in civil litigation is to prove “high likelihood”. This standard may, in some cases, be relaxed. In claims where the calculation of damages is difficult due to the nature of the loss, the court may award a reasonable amount as damages on the basis of the evidence and arguments before it without requiring the exact amount of the loss to be established. Recent amendments to the KCPA have codified the possibility of such a relaxed standard in certain cases.

    Appeals

  32. 32.Options for appeal
    What are the possibilities to appeal a judicial decision? How many levels of appeal are there?
    1. Parties in Korean civil proceedings are entitled to two levels of appeal as a matter of right. At the first level of appeal, a party can appeal the first instance decision of a single judge of a district court to an appellate panel of the district court consisting of three judges or the first instance decision of a three-judge panel of the district court to the relevant High Court, as the case may be. The second level of appeal consists of an appeal to the Supreme Court. 

  33. 33.

    Standard of review
    What aspects of a lower court's decisions will an appeals court review and by what standards?

    1. At the first level of appeal (see above) parties can appeal on both factual and legal points. Parties are also allowed to introduce new arguments and evidence on appeal and the courts undertake a de novo review of the points being appealed.

      The second level of appeal, which lies to the Supreme Court, is relatively limited. The grounds for an appeal to the Supreme Court are strictly limited to questions of law. 

  34. 34.Duration of appellate proceedings
    How long does it usually take to obtain an appellate decision?
    1. The first level of appeal typically takes between six months and a year, roughly the same amount of time as the first instance proceedings, and at times may take a few months longer if a large number of new arguments or facts are introduced before the appellate court. 

       

    Special proceedings

  35. 35.Class actions
    Are class actions available?
    1. Under the Korean legal system, class actions are not permissible unless specifically provided for by statute. A class action can be brought in accordance with the Act on Securities-Related Class Action upon satisfying certain requirements.

  36. 36.Derivative actions
    Are derivative actions available?
    1. Derivative actions are available in Korea. A shareholder who satisfies certain requirements may request a company in writing to file an action against the directors of the company to compel them to perform their obligations. If the company fails to do so, the shareholder may bring a claim against the directors in his or her own name but on behalf of the company and for the company’s benefit.

  37. 37.Fast-track proceedings
    Are fast-track proceedings available?
    1. Fast-track proceedings are available in small-claims cases. Since January 2017, the definition of small-claims cases has been revised to include cases in which the amount in dispute is below KRW 30 million (previously, the upper-limit was KRW 20 million). In these fast-track proceedings, a court may recommend at the outset that the defendant accept the claims against it and render performance as sought by the plaintiff. The defendant can object to such a recommendation within two weeks, in which case the dispute shall proceed in ordinary proceedings.

      Korean law also provides a procedure whereby a party can apply to a court for a payment order against a debtor owing money, fungibles or securities. The court will issue a payment order in favour of the creditor unless it is convinced that the application is groundless. Once the payment order is issued, if the debtor objects to the payment order within two weeks of receiving the order, the payment order loses effect, otherwise it becomes binding and enforceable.

  38. 38.Foreign-language proceedings
    Is it possible to conduct proceedings in a foreign language?
    1. It is not possible to conduct civil proceedings in the Korean courts in a foreign language.

    Effects of judgement and enforcement

  39. 39.Effects of a judgment
    What legal effects does a judgment have?
    1. A final and conclusive judgment is binding upon the parties to the case and has res judicata effect. The judgment can also have an issue preclusion effect on third-parties where the third-party was involved in the proceedings as a non-party or was given notice to join the proceedings but did not do so (see answer to question 24). Except for a court’s finding on set-off, only a court’s dispositive ruling is binding. A judgment only becomes final when all appeals have been exhausted or have not been availed within the time fixed. However, first instance judgments are normally accompanied by provisional enforcement orders that allow for them to be provisionally enforced even before the judgment becomes final.

  40. 40.Enforcement procedure
    What are the procedures and options for enforcing a domestic judgment?
    1. If the losing party does not voluntarily comply with a judgment, the successful party may initiate proceedings for execution. First instance decisions, though not final until all appeals are exhausted or not availed within fixed time limits, can be executed by virtue of provisional enforcement orders that are issued together with the judgments.

  41. 41.Enforcement of foreign judgments
    Under what circumstances will a foreign judgment be enforced in your jurisdiction?
    1. Foreign judgments are enforced in Korea by filing an enforcement action against the judgment debtor in Korean court. In this regard, the KCPA sets forth four requirements for the enforceability of a foreign judgment.  In summary, a foreign judgment may be enforceable as long as (1) the court rendering the judgment had international jurisdiction, (2) proper service of process was effectuated, (3) the judgment does not contravene the public policy of Korea and (4) there is reciprocity between Korea and the foreign country in terms of their treatment of foreign judgments. To date, the Korean courts have recognised the existence of reciprocity with several jurisdictions, including Germany, Japan and several jurisdictions in the United States (California, New York, Massachusetts, Washington and Minnesota). If these elements are satisfied, a foreign judgment can be enforced in Korea. 

      According to a recent amendment in the KCPA, if a foreign judgment on damages is fundamentally in violation of Korean law or international treaties, the court may not recognise all or part of the judgment. In doing so, the court may consider whether the damages awarded by a foreign court include litigation costs, including but not limited to legal fees. 

    Costs

  42. 42.Costs
    Will the successful party’s costs be borne by the opponent?
    1. In principle, the costs of a lawsuit, including legal fees, will be borne by the losing party. In practice, these costs are often apportioned to each party in proportion to the success achieved by each party. However, the prevailing party’s legal fees are only compensated up to a certain statutory amount, which is proportionate to the amount in dispute. In certain cases, depending on the circumstances, a court may order the successful party to pay all or part of the costs arising from certain procedural steps.

  43. 43.Legal aid
    May a party apply for legal aid to finance court proceedings? What other options are available for parties who may not be able to afford litigation?
    1. There are mainly two avenues for parties to seek legal aid to finance court proceedings. One is to apply to the Korean Bar Association or the Korean Legal Aid Corporation prior to commencing a court proceeding and the other is to apply to the relevant court while the proceedings are under way.

      Parties who are unable to afford litigation may also consider entering into contingency fee arrangements with counsel.

  44. 44.Contingency fees
    Are contingency fee arrangements permissible? Are they commonly used?
    1. In civil cases, contingency fee/conditional fee arrangements are not only permissible under Korean law but are common. However, on an application by a party, the court may reduce the amount of contingency fees agreed between the party and its lawyers if the court finds that the agreed amount was unreasonably excessive and violates equity and the principle of good faith under Korean law.

      In a recent Supreme Court decision, the court held that in criminal cases contingency fee arrangements are contrary to good faith and not permissible. Accordingly, contingency fee arrangements between counsel and client are no longer used in Korea for criminal cases.

  45. 45.Third-party funding
    Is third-party funding allowed in your jurisdiction?
    1. There are no particular prohibitions or developing trends in Korea on third-party funding.

  46. 46.Fee scales
    Are there fee scales lawyers must follow? Are there upper or lower limits for fees charged by lawyers in your jurisdiction?
    1. There are no specific fee scales that lawyers must follow. However, when it comes to compensating parties for their legal fees in court proceedings, courts are bound by a statutory fee-scale that specifies the maximum amount of compensation for legal fees that can be granted, based on the amount in dispute.

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GAR know-how provides reliable cross-jurisdictional insight to help cement the building blocks of international practice. In this section, select experienced practitioners answer commonly asked questions for key jurisdictions so allowing readers to be better-placed to solve the challenges of their working days.

Questions

    Overview

  1. 1.Court system
    Describe the general organisation of the court system for civil litigation.
  2. 2.The legal profession
    Describe the general organisation of the legal profession.
  3. 3.General
    Give a brief overview of the political and social background as it relates to civil litigation.
  4. Jurisdiction

  5. 4.Jurisdiction and venue
    What are the criteria for determining the jurisdiction and venue of the competent court for a civil matter?
  6. 5.Forum shopping
    Does your jurisdiction commonly attract disputes that have a nexus with other jurisdictions?
  7. 6.Pendency in another forum
    How will a court treat a request to hear a dispute that is already pending before another forum?
  8. 7.

    Deference to arbitration
    How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?


  9. 8.Judicial review of arbitral awards on jurisdiction
    May courts in your country review arbitral awards on jurisdiction?
  10. 9.Anti-suit injunctions
    Are anti-suit injunctions available?
  11. 10.

    Sovereign immunity
    Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity?


  12. Procedure

  13. 11.Commencement and conduct of proceedings in general
    How are proceedings commenced? To what extent will a court actively lead the proceedings and to what extent will the court rely on the parties to further the proceedings?
  14. 12.Statement of claim
    What are the requirements for filing a claim? What is the pleading standard?
  15. 13.Statement of defence
    What are the requirements for answering claims? What is the pleading standard?
  16. 14.Further briefs and submissions
    What are the rules regarding further briefs and submissions?
  17. 15.Publicity
    To what degree are civil proceedings made public?
  18. Pretrial settlement and ADR

  19. 16.Advice and settlement proposals
    Will a court render (interim) assessments about any factual or legal issues in dispute? What role and approach do courts typically take regarding settlement? Are there mandatory settlement conferences between the parties at the outset of or during the litigation?
  20. 17.Mediation
    Is referral to mediation or another form of ADR an option, or even mandatory, before or during the litigation?
  21. Interim relief

  22. 18.Forms of interim relief
    What are the forms of emergency or interim relief?
  23. 19.Obtaining relief
    What must a petitioner show to obtain interim relief?
  24. Decisions

  25. 20.Types of decisions
    What types of decisions (other than interim relief) may a court render in civil matters?
  26. 21.Timing of decisions
    At what stage of the proceedings may a court render a decision? Are motions to dismiss and summary judgment available?
  27. 22.Default judgment
    Under which circumstances will a default judgment be rendered?
  28. 23.Duration of proceedings
    How long does it typically take a court of first instance to render a decision?
  29. Parties

  30. 24.Third parties – joinder, third-party notice, intervenors
    How can third parties become involved in proceedings?
  31. Evidence

  32. 25.Taking and adducing evidence
    Will a court take or initiate the taking of evidence or will it rely on the parties to request the taking of evidence and to present it?
  33. 26.Disclosure
    Is an opponent obliged to produce evidence that is harmful to it in the proceedings? Is there a document disclosure procedure in place? What are the consequences if evidence is not produced by a party?
  34. 27.

    Witnesses of fact
    Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?


  35. 28.Expert witnesses
    Who appoints expert witnesses? What is the role of experts?
  36. 29.Party witnesses
    Can parties to proceedings (or a party’s directors and officers in the case of a legal person) act as witnesses? Can the court draw negative inferences from a party’s failure to testify or act as a witness?
  37. 30.Foreign law and documentation
    How is foreign law or foreign-language documentation introduced into the proceedings and considered by the courts?
  38. 31.Standard of proof
    What standard of proof applies in civil litigation? Are there different standards for different issues?
  39. Appeals

  40. 32.Options for appeal
    What are the possibilities to appeal a judicial decision? How many levels of appeal are there?
  41. 33.

    Standard of review
    What aspects of a lower court's decisions will an appeals court review and by what standards?


  42. 34.Duration of appellate proceedings
    How long does it usually take to obtain an appellate decision?
  43. Special proceedings

  44. 35.Class actions
    Are class actions available?
  45. 36.Derivative actions
    Are derivative actions available?
  46. 37.Fast-track proceedings
    Are fast-track proceedings available?
  47. 38.Foreign-language proceedings
    Is it possible to conduct proceedings in a foreign language?
  48. Effects of judgement and enforcement

  49. 39.Effects of a judgment
    What legal effects does a judgment have?
  50. 40.Enforcement procedure
    What are the procedures and options for enforcing a domestic judgment?
  51. 41.Enforcement of foreign judgments
    Under what circumstances will a foreign judgment be enforced in your jurisdiction?
  52. Costs

  53. 42.Costs
    Will the successful party’s costs be borne by the opponent?
  54. 43.Legal aid
    May a party apply for legal aid to finance court proceedings? What other options are available for parties who may not be able to afford litigation?
  55. 44.Contingency fees
    Are contingency fee arrangements permissible? Are they commonly used?
  56. 45.Third-party funding
    Is third-party funding allowed in your jurisdiction?
  57. 46.Fee scales
    Are there fee scales lawyers must follow? Are there upper or lower limits for fees charged by lawyers in your jurisdiction?