Litigation and enforcement in South Korea: overview

A Q&A guide to dispute resolution law in South Korea.

The country-specific Q&A gives a structured overview of the key practical issues concerning dispute resolution in this jurisdiction, including court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals.

To compare answers across multiple jurisdictions visit the Litigation and enforcement Country Q&A tool.

This Q&A is part of the global guide to dispute resolution. For a full list of jurisdictional Q&As visit www.practicallaw.com/dispute-guide.

Contents

Main dispute resolution methods

1. What are the main dispute resolution methods used in your jurisdiction to settle large commercial disputes?

Most large commercial disputes in South Korea are resolved through civil actions heard by the South Korean courts, although alternative dispute resolution (ADR) has increased in popularity in recent years. In particular, arbitration as a means of settling commercial disputes has steadily become more popular for cross border disputes. In addition, the court tends to encourage resolution of disputes through mediation.

Mediation can be conducted by a judge presiding over the litigation, by a different judge (solely for the purpose of the mediation), or by a mediation committee comprising one judge and two or more private citizens. The increased use of arbitration in South 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.

In principle, civil litigation in Korea is adversarial, although there are elements of inquisitorial proceedings as well. For example, the presiding judge can seek clarification from the parties regarding the pending litigation by directly questioning the parties about factual or legal matters and by urging the parties to present further evidence (Article 136(1), Korean Civil Procedure Act). In addition, the judge must investigate and determine sua sponte not only procedural matters like elements for a cause of action, but also certain substantive matters such as the degrees of contributory negligence between the parties, quantification of alimony and so on. In civil litigation, the evidentiary burden is the preponderance of evidence, rather than the beyond a reasonable doubt standard applicable for criminal cases.

 

Court litigation

Limitation periods

2. What limitation periods apply to bringing a claim and what triggers a limitation period?

For most civil claims (such as breach of contract), the statute of limitation is ten years. However, shorter periods apply for certain contractual disputes, for example, claims in commercial contract disputes, where the applicable period is five years. The statute of limitation starts running from the day immediately following the date when the claim could have been made (namely, the due date of each account receivable or, if the due date is not decided in advance, the day the obligation accrued).

Tort claims must either be brought (whichever is earlier):

  • Within ten years from the date the tort was committed.

  • Within three years from the date the claimant became aware of the damage and the identity of the tortfeasor.

Parties cannot contractually agree in advance to waive a statute of limitations defence.

Claims based on ownership are not subject to any statute of limitation. However, claims based on specially recognised property rights are subject to a statute of limitation of 20 years, including (but not limited to):

  • Rights related to kun-mortgages (where the principal amount of the mortgage can fluctuate over the mortgage term).

  • Superficies (rights to use land).

  • Claims based on special statutes (such as, a claim for damages under the Capital Markets Act) are subject to the specific time bars specified in the statutes. These statute of limitations are often set for shorter periods.

Court structure

3. What is the structure of the court where large commercial disputes are usually brought? Are certain types of dispute allocated to particular divisions of this court?

All large commercial disputes are brought before regular civil courts with the requisite jurisdiction, except for certain disputes that must be heard by the Patent Court (specifically established to deal with patent issues).

The number of judges sitting on a civil case at the district court level depends on the size of the claim:

  • 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.

  • In the high (appellate) courts, all cases are heard by a panel of three judges.

Subdivisions within the district and high courts are responsible for civil, criminal, family, juvenile, administrative, IP and bankruptcy matters.

If a decision of the court of first instance is appealed, the high court conducts the proceedings de novo (afresh). The decision of the high courts can be appealed to the Supreme Court only on questions of law. The decision of the Seoul High Court on IP disputes tried by the Patent Court as the court of first instance can only be reviewed by the Supreme Court. Similarly, disputes in which the Korea Fair Trade Commission (KFTC) is a party are heard at the Seoul High Court as the court of first instance, and can only be reviewed by the Supreme Court.

To deal with complex disputes involving specialised issues more efficiently, some courts have assigned certain panels of judges to deal with certain disputes, including cases involving international transactions, securities, construction, HR and the environment.

Rights of audience

4. Which types of lawyers have rights of audience to conduct cases in courts where large commercial disputes are usually brought? What requirements must they meet? Can foreign lawyers conduct cases in these courts?

Rights of audience/requirements

In South Korea, all lawyers admitted to the South Korean Bar Association have rights of audience to conduct cases, regardless of the size of the dispute.

In civil cases, representation by a counsel is not a requirement and a party can represent itself in court proceedings, including court hearings.

Foreign lawyers

Foreign lawyers do not have rights of audience in South Korean courts, but are allowed to represent their clients in arbitral hearings before an arbitral tribunal.

 

Fees and funding

5. What legal fee structures can be used? Are fees fixed by law?

There is no law limiting or fixing the method for calculating legal fees or the amount that can be charged.

Various legal fee structures including, but not limited to, hourly rates and task-based billing can be used. Except for the criminal cases, conditional or contingency fee arrangements are also allowed in South Korea, and are frequently used in practice. However, South Korean courts have held that excessive contingency fees violate public policy and courts can reduce a contingency fee to a reasonable amount, despite any arrangement made between the parties.

 
6. How is litigation usually funded? Can third parties fund it? Is insurance available for litigation costs?

Funding

There is no specific law or regulation prohibiting funding of a lawsuit by a third party, however the Attorney-at-Law Act prohibits a lawyer from becoming an assignee of any rights in dispute.

Insurance

Insurance is available to cover all or part of a party's legal costs. As of 2009, South Korean and foreign insurance companies sell insurance to cover legal costs for certain types of civil and commercial cases.

 

Court proceedings

Confidentiality

7. Are court proceedings confidential or public? If public, are the proceedings or any information kept confidential in certain circumstances?

All civil case hearings are open to the public, except where the court determines that a public hearing is detrimental to national security or public policy. Court documents such as pleadings and witness statements are generally not available to the public. The current schedules and the status of all legal proceedings are available on the website of the Supreme Court, and can be looked up by the case number together with the name of any party (Article 57, Court Organisation Act). Most Supreme Court decisions and some lower court decisions are available to the public on the Supreme Court's website. On request, the court can release its decision on a specific case with the personal information redacted.

Pre-action conduct

8. Does the court impose any rules on the parties in relation to pre-action conduct? If yes, are there penalties for failing to comply?

There are no pre-action procedures in place in South Korea.

Main stages

9. What are the main stages of typical court proceedings?

Starting proceedings

A civil action begins with the claimant filing a complaint with the court that has jurisdiction over the case.

Notice to the defendant and defence

The claimant will file a complaint with the court setting out the claim and attaching the relevant documents. The court will then serve a copy of the complaint on the defendant using a number of methods, including hand delivery by a court official or delivery by postal service. If the address of the defendant is unknown, the complaint can be served by public notice on the order of the presiding judge, subject to strict requirements.

Unless a copy of the claimant's complaint is served on the defendant by public notice, a defendant contesting the claimant's claim must submit a written statement of defence within 30 days of the date of receiving a copy of the complaint (Article 256(1), Korean Civil Procedure Act (KCPA)). After the defendant submits a written defence, the parties exchange briefs and submit additional evidence in support of their claim and defence.

Subsequent stages

Before convening the hearing, the court can hold one or more preliminary sessions to clarify any issues in dispute and review the evidence. Subsequently, the court holds several short hearings (usually at four to six week intervals) until it can establish that it has received and reviewed sufficient information to pass judgment. It is very rare for the court to hold concentrated trial or hearings where the case is heard continuously for a set period of days or weeks. At the closing of the hearing or hearings, the court announces its judgment.

The courts (and not the parties) have exclusive authority to manage the case. The courts (on consultation with the parties and/or their legal representatives) determine the schedule for the proceedings, including deadlines for submission of briefs, dates for preparatory meetings, examination of evidence and witnesses, court hearings, and announcement of the judgment. The court is not bound by a request of the parties regarding the scheduling of the proceedings.

A Korean court cannot hold a party in contempt for disobeying an order or direction regarding the civil proceedings. However, the court has a variety of means by which it can manage the overall case schedule and court procedures on hearing dates. For example:

  • The court can prohibit the submission of an allegation or an application for examination of evidence if a party fails to abide by the due dates set by the court (Article 147, KCPA).

  • If a party causes delay to the conclusion of an action by producing arguments, allegations of an offence or a defence at a late stage, intentionally or through gross negligence, the court can refuse to consider the arguments (Article 149, KCPA).

  • The presiding judge can prohibit a person from speaking at the hearing if the person does not comply with a court order (Article 135, KCPA).

  • If any person disrupts the court proceedings, the presiding judge can order the detention of that person and/or the payment of a fine.

At the end of a trial, the judge enters a written judgment stating the reasons for the decision. A judgment is not enforceable until it becomes final, but the court can declare a judgment to be provisionally enforceable.

From the time of filing a complaint, it usually takes between six months to two years for the court of first instance to hand down its judgment in a large and complex dispute.

 

Interim remedies

10. What actions can a party bring for a case to be dismissed before a full trial? On what grounds must such a claim be brought? What is the applicable procedure?

There is no summary procedure in South Korea, such as a motion for summary judgment or motion to dismiss.

The relevant South Korean court can dismiss a claimant's claims for various procedural reasons including, lack of jurisdiction, standing, or if the relevant claim does not involve an issue capable of being litigated.

At trial, the parties have the right to challenge the court's jurisdiction or apply for dismissal (for reasons such as lack of standing or capacity) and ask the court to dismiss the case. However, in practice, the court can hear the full case on the merits and then dismiss the case due to lack of jurisdiction or standing.

 
11. Can a defendant apply for an order for the claimant to provide security for its costs? If yes, on what grounds?

If a claimant does not have any residence, office or other place of business in South Korea, the defendant can file a motion with the court to order the claimant to provide security for court costs (Article 117, KCPA). Subject to court approval, the security can be provided by the issuance of a surety bond.

 
12. What are the rules concerning interim injunctions granted before a full trial?

Availability and grounds

Korean courts are generally regarded as more willing than courts in other jurisdictions to issue interim protection such as preliminary attachments and preliminary injunctions. In both cases, the applicant must demonstrate a prima facie case that it will be irreparably harmed if the interim relief is not granted. These remedies are also available in support of foreign court proceedings and arbitrations.

Prior notice/same-day

Preliminary injunctions can be granted on an ex parte basis, at the discretion of the court. Preliminary injunctions can be obtained on the same day in urgent cases, although this is very unusual.

Mandatory injunctions

Mandatory interim injunctions to compel an action of a party are possible in certain circumstances. Examples under the Civil Enforcement Act include an order to:

  • Cease unlawful possession of property or premises (Article 305(2), Civil Enforcement Act).

  • Pay accrued wages (Article 309, Civil Enforcement Act).

Rights to vary or discharge order and appeals

Applicants whose request for a preliminary attachment or injunction are denied by a court of first instance can appeal the decision within one week of being served with the decision (Article 281 (2) and Article 301(15) (2), Civil Enforcement Act).

If a request for preliminary attachment or injunction is granted by a court, the party against whom the preliminary attachment or injunction was granted can file for an objection to the same court (Article 283, Civil Enforcement Act).

 
13. What are the rules relating to interim attachment orders to preserve assets pending judgment or a final order (or equivalent)?

Availability and grounds

In order to obtain a preliminary attachment the applicant must (Article 227, Civil Enforcement Act):

  • Establish a prima facie case.

  • Prove that the assets are owned by the debtor.

  • Prove that unless the order is granted, the enforcement of the judgment will be impossible or difficult.

The court's review of an application for preliminary attachment is normally conducted by reviewing the written application. The court can decide on the application without holding a hearing on the day the preliminary attachment is sought (if there is an urgent need).The courts have wide discretion in deciding whether to grant provisional remedies, including preliminary attachments.

Prior notice/same-day

Preliminary attachments are generally obtained without prior notice to the defendant. It may be possible to obtain a preliminary attachment on the same day but this is very unusual.

Main proceedings

An application for preliminary attachment can be sought prior to the commencement of the main action at the court with jurisdiction:

  • Over the location of the subject asset or property; or

  • To hear the main proceedings.

As a result, the court that hears the application for preliminary attachment can be different from the court assigned to hear the main claim.

Interim attachments can be granted in support of substantive proceedings taking place in another jurisdiction, including foreign courts and arbitral tribunals.

Preferential right or lien

A preliminary attachment order does not grant the claimant any preferential right or lien over the seized assets.

The claimant is included in any distribution of the liquidated proceeds of the attached asset or property alongside creditors with preferential claims if the date of a preferred claim is later than the date of the preliminary attachment order.

Damages as a result

The claimant is liable for damages suffered as a result of any irresponsibly sought preliminary attachment order. In general, if the claimant does not succeed in the main claim, it may be held liable for certain damages, as determined by the court.

Security

When the court decides to grant the attachment, the court can order the applicant to lodge a security deposit with the court, the amount of which will depend on the type of asset to be preserved. Security can be posted by way of a surety bond, subject to court approval and acceptance by the issuing bond company.

 
14. Are any other interim remedies commonly available and obtained?

Other than preliminary attachment orders and preliminary injunction orders, there are no other interim remedies available under South Korean law.

 

Final remedies

15. What remedies are available at the full trial stage? Are damages just compensatory or can they also be punitive?

South Korean courts can order the following:

  • Performance of specific obligations (such as, delivery of certain property).

  • Expression of intent constituting a juridical act.

  • Damages.

  • Injunctions.

  • Declaratory relief

In the case of damages, punitive or treble damages are not allowed.

 

Evidence

Disclosure

16. What documents must the parties disclose to the other parties and/or the court? Are there any detailed rules governing this procedure?

There is no common law rule of discovery in South Korea, including the case of electronic documents. As a result, parties to an action are only required to submit the documents that are necessary to substantiate the relevant claim or defence.

Although a party cannot make general requests for documents without identifying the specific documents sought, it can request that the court issue an order to produce specific documents that are in the possession of the other party or any third party. In particular, a party can file an application for an order for document production in any of the following circumstances (Article 344, Korean Civil Procedure Act (KCPA)):

  • The other party possesses the document that it cited in the action.

  • The applicant party is legally entitled to request that the holder of the document delivers or makes the document available for inspection.

  • 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 the document.

A party's application for production of documents must clearly indicate the following (Article 345, KCPA):

  • The document requested.

  • The contents of the requested document.

  • The document holder.

  • The fact to be proved by the document.

  • The grounds on which the document should be produced.

A party must comply with any order of the court to submit certain document(s) (Article 344, KCPA). If a third party fails to comply with a court order to produce documents, it may be ordered to bear any costs and may be subject to an additional fine (Article 351, Article 318 and Article 311(1), KCPA). If the party to the pending action fails to comply with the court order to produce documents without a justifiable reason, the court can accept the facts alleged by the applicant without any evidence (Article 349, KCPA).

Privileged documents

17. Are any documents privileged? If privilege is not recognised, are there any other rules allowing a party not to disclose a document?

Privileged documents

A party does not need to disclose any documents in its possession unless the court has issued a document production order for the documents. Certain professionals can refuse to submit documents containing confidential information if it falls within the scope of their professional duty. Such professionals include:

  • Lawyers.

  • Patent attorneys.

  • Public notaries.

  • Certified public accountants.

  • Tax accountants.

  • Medical doctors.

  • Pharmacists.

  • Persons who have a duty of confidentiality under other applicable laws.

  • Persons engaged in religious service.

Other non-disclosure situations

The Korean Civil Procedure Act (KCPA) lists the types of information that must be disclosed. If a document contains technological or professional secrets and the person with custody of that document is not exempt from maintaining its contents as confidential, that person can refuse to submit the relevant documents (Articles 344 and 315, KCPA).

Examination of witnesses

18. Do witnesses of fact give oral evidence or do they just submit written evidence? Is there a right to cross-examine witnesses of fact?

Oral evidence

The courts can order anybody (except the parties and their legal representatives) to be present and testify in court as a witness (except when a potential witness is exempt from the obligation to testify under relevant laws) (Article 303, Korean Civil Procedure Act).

Right to cross-examine

If a witness provides oral testimony in court, the other party and/or the judge have the right to cross-examine. Redirect examination (that is, a further examination of the witness carried out by the party who requested the witness's appearance) is permitted if it relates to facts and issues that were dealt with during the cross examination. It can also be allowed with permission from the presiding judge.

Third party experts

19. What are the rules in relation to third party experts?

Appointment procedure

If a court considers that expert examination of an issue or fact is required, the court, at a party's request will directly appoint an expert witness to provide its opinion (Article 335, Korean Civil Procedure Act). A party can submit written analysis by an expert that it has privately retained, however it may have less evidentiary value than that of the court appointed expert.

Role of experts

A court-appointed expert must be neutral and independent and submit a written analysis or give oral testimony before the court to assist and supplement the judges' understanding of special laws or their assessment of certain facts. The court is not bound by an assessment or conclusion drawn by an expert witness. Experts appointed by the parties do not have a similar obligation of independence.

Right of reply

If an expert retained by a party provides oral testimony in court, the expert can be cross-examined by the other party. The parties can cross-examine a court-appointed expert and challenge the analysis or conclusion, but a party that disagrees with the analysis or conclusion can also request that the court appoint a new third party expert witness. However, the court will only accept a request if it is convinced of the incompetence or bias of the previous expert.

Fees

If a court-appointed expert witness is retained at the request of a party, that party is required to pay the cost in advance. If the court has appointed the expert witness ex officio, it can order the party that benefits from the examination of the expert witness to pay the cost in advance. If it is not possible to establish the benefiting party, the court can order the claimant to pay the cost in advance. The costs associated with an expert witness are ultimately borne by the unsuccessful party to the action.

For experts hired by the parties, each party bears the costs of its own experts.

 

Appeals

20. What are the rules concerning appeals of first instance judgments in large commercial disputes?

Which courts

In a civil action, a losing party can appeal to the high (appellate) court. The appellate can give weight to the decision and findings of fact by the court of first instance, but it is not required to defer to the lower court's conclusions on issues of either fact or law. In addition, the parties can introduce new evidence and arguments in the appellate proceedings even if they were not heard by the court of first instance.

Grounds for appeal

There is no restriction on the grounds of appeal on a decision of first instance and the grounds for appeal can include errors of fact and errors of law.

Time limit

An appeal must be made within 14 days from the date of service of the judgment. Once this time period has elapsed without an appeal being filed, the judgment becomes final and binding.

 

Class actions

21. Are there any mechanisms available for collective redress or class actions?

In general class actions are not permitted, and each claimant seeking relief must file an individual action. There is an exception for damages arising from securities transactions where class action is available under the Securities-Related Class Action Act. Under the Act, the class action is filed by one or more class members who file for the class after obtaining "permission for class action" from the court. Members of the class are automatically bound by the outcome of the suit unless he expressly elects to drop out ("opt-out" system).

There are no specific regulations regarding how class actions are funded.

 

Costs

22. Does the unsuccessful party have to pay the successful party's costs and how does the court usually calculate any costs award? What factors does the court consider when awarding costs?

The final judgment by the courts includes a decision on the allocation of costs of the proceedings.

Attorneys' fees are reimbursed only to the extent permitted by Supreme Court regulations. The full recovery of attorneys' fees is not normally possible.

Litigation costs in principle are borne by the unsuccessful party (Article 98, Korean Civil Procedure Act). In a partial victory, the court has the discretion to decide the ratio or amount of litigation costs that the respective parties must pay.

 
23. Is interest awarded on costs? If yes, how is it calculated?

The court does not award any interest on the costs of an action incurred by a party.

 

Enforcement of a local judgment

24. What are the procedures to enforce a local judgment in the local courts?

Once a domestic judgment is issued, the successful party can enforce it against the property or assets of the unsuccessful party by asking the court to place that property or assets in a public auction, and distributing the proceeds from it.

 

Cross-border litigation

25. Do local courts respect the choice of governing law in a contract? If yes, are there any areas of law in your jurisdiction that apply to the contract despite the choice of law?

Courts in South Korea respect the choice of a foreign governing law in a contract and the parties generally have the freedom to choose the laws governing a contract (Article 25, Korean Conflicts of Law). However, if the dispute involves any mandatory laws of South Korea, those laws will prevail.

 
26. Do local courts respect the choice of jurisdiction in a contract? Do local courts claim jurisdiction over a dispute in some circumstances, despite the choice of jurisdiction?

South Korean courts generally respect the choice of jurisdiction agreed by the parties. The Supreme Court has declared that a provision regarding an agreement to recognise exclusive jurisdiction of a foreign court is effective if the following requirements are met:

  • The case is not about a matter subject to the exclusive jurisdiction of the South Korean courts.

  • The foreign court designated as the court with exclusive jurisdiction has jurisdiction in the matter under the relevant law of the foreign country.

  • The foreign court designated as the court with exclusive jurisdiction has a reasonable connection to the matter in dispute.

The Supreme Court has also ruled that if the agreement on exclusive jurisdiction of a foreign court is clearly unreasonable and/or unfair, then agreement will be voidable for being against the public order and good morals.

 
27. If a foreign party obtains permission from its local courts to serve proceedings on a party in your jurisdiction, what is the procedure to effect service in your jurisdiction? Is your jurisdiction party to any international agreements affecting this process?

South Korea is party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. In accordance with the convention, service of process is conducted by the Ministry of Court Administration at the Supreme Court, which is the designated central authority for processing the service of documents from other contracting states. Documents from other contracting states are served on a South Korean resident according to the method prescribed by the Korean Civil Procedure Act.

 
28. What is the procedure to take evidence from a witness in your jurisdiction for use in proceedings in another jurisdiction? Is your jurisdiction party to an international convention on this issue?

South Korea is a party to the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters which came into effect on 12 February, 2010. Under the convention, evidence from a witness in South Korea can be sent through a letter of request to the South Korean central authority that will then transmit the letter to the relevant South Korean court. If accepted, the court will conduct an in-court witness examination in accordance with the Korean Civil Procedure Act.

Enforcement of a foreign judgment

29. What are the procedures to enforce a foreign judgment in the local courts?

To enforce a foreign judgment, a party must request and obtain an enforcement judgment from a South Korean court of law (Article 26, Civil Enforcement Act). The recognition of a foreign judgment is subject to certain requirements (Article 217, Korean Civil Procedure Act):

  • The judgment is final and conclusive.

  • The court that gave the judgment has jurisdiction under the principles of international jurisdiction laid down in South Korean law or treaties.

  • The defendant was properly served with the complaint or summons in advance, to allow sufficient time for preparation of his defence, or the defendant responded to the suit without having been served.

  • The effect of the judgment is not contrary to South Korean public policy.

  • There is a guarantee of reciprocity.

 

Alternative dispute resolution

30. What are the main alternative dispute resolution (ADR) methods used in your jurisdiction to settle large commercial disputes? Is ADR used more in certain industries? What proportion of large commercial disputes is settled through ADR?

Arbitration is currently the main ADR method used to settle large commercial disputes.

Domestic court-supervised mediation is commonly used and is encouraged by the courts. Mediations are governed by the Judicial Conciliation of Civil Disputes Act and are conducted either by a single judge or a mediation committee, which may include lay persons who are industry experts. Court-supervised mediations are strongly encouraged by the courts, but there is no requirement that a party must agree to mediate (unless the parties have agreed to this in writing).

Outside the courts' supervision, private mediation and conciliation proceedings are available as alternatives to litigation and arbitration, although these methods are much less common because the outcome is not binding unless the parties agree. There are a few areas where public organisations provide mediation services, for example the:

  • Korea Consumer Agency for consumer complaints.

  • Financial Supervisory Service for disputes between financial institutions and their customers.

The Korean Arbitration Act provides detailed procedures for conducting arbitration in South Korea.

The parties are free to agree to arbitrate under the procedural rules of arbitration of various organisations, including the International Chamber of Commerce, the UNCITRAL Model Law and the Korean Commercial Arbitration Board.

 
31. Does ADR form part of court procedures or does it only apply if the parties agree? Can courts compel the use of ADR?

A court can encourage the parties to attempt to mediate before litigation but cannot compel the use of ADR unless the parties agree.

 
32. How is evidence given in ADR? Can documents produced or admissions made during (or for the purposes of) the ADR later be protected from disclosure by privilege? Is ADR confidential?

Parties are free to agree on how the ADR is conducted and can agree on the rules governing the submission of evidence.

The parties can contractually agree to conduct the proceeding on a confidential basis and without prejudice to their rights in litigation, and the courts will respect this agreement.

Rules governing evidence in an arbitration are generally determined in accordance with the rules under which the arbitration is being conducted, and at the discretion of the arbitral tribunal.

There is no requirement to hold arbitration proceedings in public, unlike court proceedings for a civil action. As a result, the details of an arbitration remain private.

 
33. How are costs dealt with in ADR?

Parties to mediation can agree on how the costs will be allocated or recovered, and any agreement is respected by the courts.

In arbitration, the unsuccessful party usually bears the costs associated with the proceedings.

 
34. What are the main bodies that offer ADR services in your jurisdiction?

The Korean Commercial Arbitration Board (KCAB) (www.kcab.or.kr/jsp/kcab_eng/index.jsp) is the only officially recognised arbitral institution in South Korea. It also conducts and administers mediation.

 

Proposals for reform

35. Are there any proposals for dispute resolution reform? If yes, when are they likely to come into force?

The Korean Commercial Arbitration Board has conducted public hearings about possibly amending its rules regarding emergency arbitrators, multi-party disputes, and the appointment of arbitrators. The Ministry of Justice is reviewing possible updates to the Korean Arbitration Act in light of the amendments made to the UNCITRAL Model Law in 2006.

     

Online resources

Korea Law Service Centre of Korea Ministry of Government Legislation

W www.law.go.kr/main.html

Description. Website that provides texts of all Korean legislation, administrative rules and regulations, and local statutes. Operated by the Ministry of Government Legislation (all information provided in Korean).Comprehensive Legal Information Service of the Supreme Court of Korea.

W http://glaw.scourt.go.kr/wsjo/intesrch/sjo022.do

Description. Website that provides texts of Korean court decisions and orders, as well as legal articles, annotations and publications by administrative bodies. Also provides information regarding laws and regulations. Operated by the Supreme Court of Korea (all information provided in Korean).

Legal Information System of the National Assembly of the Republic of Korea

W http://likms.assembly.go.kr/law/jsp/law/Main.jsp

Description. Website that provides an introduction to the Korean legislative process, and information regarding recently revised/enacted laws and repealed legislation. Operated by the National Assembly of the Republic of Korea (all information provided in Korean).

Supreme Court Library of Korea

W http://library.scourt.go.kr/kor/judgment/eng_judg.jsp

Description. Website with Korean court decisions in English.

Supreme Court of Korea

W http://eng.scourt.go.kr/eng/crtdcsns/NewDecisionsList.work?mode=6

Description. Website with Korean court decisions in English.

Korea Legislation Research Institute

W http://elaw.klri.re.kr/eng_service/main.do

Description. Website provides Korean legislation in English.

Korea Law Service Centre

W www.law.go.kr/engLsSc.do?menuId=0&subMenu=5&query=

Description. Website provides Korean legislation in English.



Contributor profiles

Jin Yeong Chung

Kim & Chang

T +82 2-3703-1108
F +82 2-737-9091/9092
E jychung@kimchang.com
W http://www.kimchang.com/

Professional qualifications. Admitted to Korea bar, 1985; New York, 1995

Yale Law School, LL.M., 1994, Judicial Research and Training Institute of the Supreme Court of Korea, 1985, College of Law, Seoul national University LL.B., 1984

Areas of practice. Litigation, international litigation, insolvency and restructuring, banking/finance dispute.

Recent transactions

  • Represented a foreign investor in ICC arbitration against the governmental deposit insurance corporation which led to a favorable award of several trillion KRW for the client.

  • Represented a Korean company to fully prevail in an international arbitration proceeding in New York, with a projected multi-billion dollar value.

  • Represented a Korean investment trust company in a court case against a Korean public entity, winning on all claims valued at approximately one trillion KRW.

  • Defended a foreign private equity fund in the appellate proceedings of a high-profile white-collar criminal case in connection with acquisition of a Korean commercial bank.

Languages. Korean, English, Japanese, German

Professional associations/memberships. Member, Korean Bar Association

Publications

  • Getting the Deal Through – Securities Litigation: Korea chapter (Co-author, Law Business Research, 2016).

  • Practical Law – Class Actions Global Guide: Korea chapter (Co-author, Thomson Reuters, 2015).

  • Practical Law – Dispute Resolution Global Guide: Korea chapter (Co-author, Thomson Reuters, 2015).

  • Chambers Legal Practice Guides - Litigation: Trends & Developments (Co-author, Chambers & Partners, 2014).

  • The Restructuring Review (6th, 7th edition): Korea chapter (Co-author, Law Business Research, 2013-2014).

  • The guide to Litigation and dispute resolution: Structuring LBOs in Korea: Proceed with caution (Co-author, IFLR, 2012).

  • The guide to Dispute resolution: Kiko contracts survive initial challenges in court (Co-author, IFLR, 2010).

  • "Recognition of insolvency abroad,” IFLR September 2010 (Co-author, IFLR, 2010).

  • "Private equity beware", The 2009 guide to Litigation (Co-author, IFLR, 2009).

Sungjean SEO

Kim & Chang

T +82 2-3703-1214
F +82 2-737-9091/9092
E sjseo@kimchang.com
W http://www.kimchang.com

Professional qualifications. Admitted to the New York bar, 1994; Columbia University School of Law, J.D., 1993; Yonsei University, B.A., 1990

Areas of practice. International arbitration and cross-border litigation, engineering and construction disputes.

Recent transactions

  • Representing a Chinese company in a Korean Commercial Arbitration Board arbitration against a Korean cosmetics company.

  • Advising a multinational information security company in connection with charges of trade secret infringement.

  • Successfully represented a Korean company in an ICC arbitration against a Kazakhstan hydrocarbon exploration company.

  • Successfully represented a Korean supplier against its exclusive US distributor in an ICDR arbitration and advised regarding related proceedings in the Korean and US courts.

Languages. English, Korean

Professional associations/memberships. Member, New York State Bar Association

Publications

  • Practical Law – Class Actions Global Guide 2015/16: Korea chapter (Co-author, Thomson Reuters, 2015).

  • Practical Law – Dispute Resolution Global Guide 2015/16: Korea chapter (Co-author, Thomson Reuters, 2015).

  • Chambers Legal Practice Guides – Litigation: Trends & Developments (Co-author, Chambers & Partners, 2014).

  • The guide to Litigation and dispute resolution: Structuring LBOs in Korea: Proceed with caution (Co-author, IFLR, 2012).

  • The guide to Dispute resolution: Kiko contracts survive initial challenges in court (Co-author, IFLR, 2010).

  • The guide to Litigation: Private equity beware (Co-author, IFLR, 2009).


{ "siteName" : "PLC", "objType" : "PLC_Doc_C", "objID" : "1247243588449", "objName" : "Litigation and enforcement in South Korea overview", "userID" : "2", "objUrl" : "http://us.practicallaw.com/cs/Satellite/us/resource/8-381-3681?null", "pageType" : "Resource", "academicUserID" : "", "contentAccessed" : "true", "analyticsPermCookie" : "22e97be00:15b15fa47d7:5046", "analyticsSessionCookie" : "22e97be00:15b15fa47d7:5047", "statisticSensorPath" : "http://analytics.practicallaw.com/sensor/statistic" }