Litigation in South Korea

South Korea is one of my favorite countries in the world. The food is amazing, the people are fun and energetic, and the culture and history are amazing. And, of course, it is an economic powerhouse and leader in technology and investment. As a result, lawyers to aid in commercial disputes are in high demand. Luckily, I was fortunate enough to speak with Hyung Won Nahm, an associate at Yulchon LLC in Seoul, to learn about litigation in his country.

Why should you continue reading this post about litigation in South Korea?

• You want to sue Samsung and Hyundai in their home countries and you want to know how that would work.

• Your knowledge of South Korea largely comes from Squid Game, a show that would be scarier if there were also lawyers.

• You want to know how lawyers gather evidence in a country without a robust discovery process or generally legal private investigators.

Hyung Won Nahm is an associate at Yulchon LLC in Seoul. This interview has been lightly edited.

Can you tell me about the kinds of disputes you handle in your legal practice? 

In my practice, I handle a wide variety of complex commercial disputes. These typically include matters related to breach of contract, corporate governance issues, shareholder disputes, intellectual property conflicts, construction disputes, and cross-border litigation or arbitration.

I have also managed high-stakes arbitral disputes involving significant financial stakes, which require a nuanced understanding of international law and multi-jurisdictional procedures.

What type of clients do you generally represent in disputes?

I generally represent large businesses, including multinational corporations, financial institutions, conglomerates, and government agencies (e.g., the Korean Ministry of Justice).

My clients often operate in industries such as finance, technology, construction, and energy. These clients often face highly complex legal issues, and I work closely with them to craft strategic solutions tailored to their specific needs.

Besides Microsoft Office, what software do you use in your practice? 

In addition to Microsoft Office, I frequently use specialized legal software such as document management systems like iManage and e-discovery platforms like Relativity and Everlaw.

For project management, I utilize tools like Asana and Trello to ensure efficiency in handling case milestones.

Additionally, I often rely on legal research platforms like Westlaw or LexisNexis for case law and statutory analysis.

What books and websites do you use for legal research? 

For legal research, I rely on a combination of resources. The primary websites I use are Westlaw, LexisNexis, and, in Korea, databases like KLRI (Korea Legislation Research Institute) and LAWnB.

As for books, I frequently refer to textbooks on civil, criminal, and administrative law for local rules and procedures.

For arbitral disputes, I also refer to the relevant arbitral rules for each arbitral institution and renowned arbitration books, such as International Commercial Arbitration by Gary Born.

Image credit: https://en.wikipedia.org/wiki/Judiciary_of_South_Korea#/media/File:South_Korea_Supreme_Court.jpg

Do you electronically file pleadings with the court?  Or must you send paper copies of them to the courthouse?

In Korea, most courts now allow for electronic filing, which greatly streamlines the litigation process.

The Korean Supreme Court has an Electronic Litigation System that enables attorneys to submit pleadings, motions, and other court documents online. It’s a user-friendly platform that allows for easier case management and tracking.

Does Korea have specialized courts that only hear commercial cases? 

Yes, Korea has specialized courts, such as the Seoul Central District Court's International Business Division, which focuses on commercial cases, particularly those with international elements. There are also specialized divisions for intellectual property and construction disputes, ensuring that judges with relevant expertise handle complex commercial matters.

Who decides the facts in a commercial case?  Is it a judge or a jury? 

In Korea, commercial cases are decided by judges, not juries.

Korea does not have a jury system for civil cases, including commercial disputes. The judge evaluates both the facts and the law and ultimately issues a ruling based on the evidence presented.

Generally speaking, how many pages are the complaints or initial pleadings you see in your work?

The length of complaints or initial pleadings can vary widely depending on the complexity of the case. Generally, they range from 10 to 50 pages.

Some judges, however, encourage or advise attorneys to limit their pleadings to within 30 pages. In more complex commercial disputes, the initial pleadings might exceed 100 pages, particularly if there are multiple claims or counterclaims. In such circumstances, they are usually submitted as separate pleadings.

Unfortunately, specific pleadings are not publicly available due to confidentiality concerns, but examples can sometimes be found through public court databases.

Generally speaking, how long does it take for a case to go from complaint to judgment?

The timeline for a case to move from complaint to judgment in Korea can vary significantly depending on the complexity of the matter.

A relatively straightforward commercial dispute might take between six months to a year, while more complicated cases, especially those involving multiple parties or cross-border elements, can take several years to resolve, particularly if appeals are involved.

Generally speaking, how is evidence exchanged between the parties before trial?  Do you get to interview the opposing witnesses before the trial?

In general, parties submit their evidence in written form to the court, which is then shared with the opposing party. Witness interviews or depositions, as commonly done in other jurisdictions, are not a routine part of the pre-trial process. Witnesses are typically questioned for the first time in court during the trial.

In Korea, there is no formal discovery process similar to common law jurisdictions like the United States. Rather, during the course of the proceedings, we have document production procedures, during which a party makes a request for document production, and the court rules on whether to order the other party to submit the relevant documents.

I understand that lawyers in Korea are restricted in their ability to hire private investigators. How do plaintiffs gather evidence to use to support a claim?
In Korea, evidence is usually gathered through documentary means, such as contracts, emails, and other written correspondence. For more complex issues, forensic experts or accountants may be brought in to analyze financial records or digital data. Additionally, witness testimony and third-party affidavits are critical in gathering evidence. While hiring private investigators is limited, parties can sometimes petition the court for orders to compel the production of certain evidence.

If you win, does the other side reimburse your attorneys’ fees?

Yes, in Korea, the losing party generally pays the court fees and a portion of the winning party’s legal costs. However, the amount recoverable is capped by court rules, and the full legal expenses incurred may not be fully compensated. It is important to note that the court has discretion in determining how much the losing party must pay in legal fees.

Are the courts open to the public?  Can ordinary people watch a commercial trial?

Yes, Korean courts are generally open to the public, and ordinary people can observe commercial trials. However, in certain sensitive cases, such as those involving trade secrets or personal information, the court may close proceedings to protect the confidentiality of the parties involved.

Do you believe that Korean courts have a particular strength for resolving commercial disputes?  How about a weakness?

Korean courts are efficient, with specialized judges who have strong expertise in commercial law, making them effective at handling complex disputes. Their focus on written submissions ensures clarity and thorough consideration of the issues.

However, a potential weakness is the lack of a robust discovery process, which can limit the extent of evidence gathering. Additionally, the absence of a jury system means that parties are entirely reliant on a single (or several) judge’s discretion.

How often do you go to the courthouse? 

I go to the courthouse regularly, almost for every hearing or motion, which often takes place once a month.

When you are there, do you need to wear a special robe or wig?
In Korea, lawyers do not wear special robes or wigs. However, judges wear formal robes during court sessions, lending a sense of solemnity to the proceedings.