Gathering Evidence in Aid of Foreign Litigation Guide |
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Korea, Republic of |
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| (Asia Pacific) Firm Lee & Ko Updated 22 Mar 2022 | |
| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | South Korea joined the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”) in 1997. While Korea did not enact new statutes related to obtaining evidence in aid of foreign litigation, it made a couple of objections to some Articles of the Hague Evidence Convention. Specifically, pursuant to Article 33 of the Hague Evidence Convention, Korea objected to Articles 16 and 17 of the Hague Evidence Convention, thereby disallowing a diplomat or duly appointed person of a foreign state from taking evidence from persons other than of the foreign state. In other words, a diplomat or duly appointed persons of a foreign state generally may not take evidence in Korea. Further, with regard to Article 23 of the Hague Evidence Convention, Korea declared that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents. Although this declaration does not mean that all Letters of Request for obtaining pre-trial discovery will be flatly rejected, it provides significant discretion to Korea, pursuant to Articles 11 and 12 of the Hague Evidence Convention. Under the Hague Evidence Convention, if the Letter of Request is accepted, the relevant Korean court will supervise the potential evidence collection and witness examination in accordance with the Korean Civil Procedure Act. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | Yes, all Hague Evidence Convention Letters of Request are handled by the National Court Administration (“NCA”). The NCA is an administrative body under the Supreme Court of Korea. The NCA acts as the main initial gatekeeper regarding the Hague Evidence Convention Letters of Request and decides whether the letters would be forwarded to the Korean judiciary or rejected and sent back to the originating jurisdiction. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | All of the above would theoretically be applicable. In practice, responses to written questions with the consent of all parties involved are the most realistic to obtain. |
| Who bears the burden of showing whether any privileges apply? | N/A. Korea did not make any declaration of applicability for privileges existing under the laws of other states (which option is made available by Art. 11 of the Hague Evidence Convention). |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | Yes, but this threshold is considered to be a low bar from the NCA’s perspective. If the requests are broad and deemed to be an attempt to procure pre-trial discovery from a Korean point of view, they will most likely be rejected at the outset. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | While there is no specific statute or rule in this regard, in light of the COVID-19 pandemic, some parties relying on the Hague Evidence Convention have indeed made such requests. In the end, the district court with jurisdiction over the Korean third party would have the ultimate discretion to allow a video deposition. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | There is no explicit blocking statute in Korea. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | Yes. For Korean citizens or third-country nationals, the process still needs to go through an approved Hague Evidence Convention Request and be reviewed by NCA for final authorization by a Korean district court. On the other hand, if a citizen of the country seeking evidence (who resides in Korea) volunteers to give evidence, Korea permits this process, provided that the taking of evidence is performed by the country’s consular officers or private attorneys either on notice or pursuant to a commission. In practice, for Korean conglomerates with large in-house legal teams, the consent provided by all the parties can often allow for voluntary deposition practice at locations that are convenient for the witnesses or parties. Korea has historically been more relaxed than Japan about deposition location and logistics when multiple depositions are needed in a large cross-border litigation matter. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | Arbitration in Korea is regulated by the Korean Arbitration Act (“KAA”), which is based on the UNCITRAL Model Law. Article 28 provides that the arbitral tribunal may request a court to take evidence or request for the court's assistance in taking evidence. When the arbitral tribunal requests a court to cooperate in taking evidence, the court may order such persons as a witness or document holder to appear before the arbitral tribunal or order such persons to submit necessary documents to the arbitral tribunal. The arbitral tribunal may also ask the court to become directly involved in taking evidence to support the arbitration. When a court takes evidence, the arbitrator or parties may participate in taking evidence with the permission of the presiding judge. |
Gathering Evidence in Aid of Foreign Litigation Guide
Yes.
South Korea joined the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”) in 1997. While Korea did not enact new statutes related to obtaining evidence in aid of foreign litigation, it made a couple of objections to some Articles of the Hague Evidence Convention.
Specifically, pursuant to Article 33 of the Hague Evidence Convention, Korea objected to Articles 16 and 17 of the Hague Evidence Convention, thereby disallowing a diplomat or duly appointed person of a foreign state from taking evidence from persons other than of the foreign state. In other words, a diplomat or duly appointed persons of a foreign state generally may not take evidence in Korea.
Further, with regard to Article 23 of the Hague Evidence Convention, Korea declared that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents. Although this declaration does not mean that all Letters of Request for obtaining pre-trial discovery will be flatly rejected, it provides significant discretion to Korea, pursuant to Articles 11 and 12 of the Hague Evidence Convention.
Under the Hague Evidence Convention, if the Letter of Request is accepted, the relevant Korean court will supervise the potential evidence collection and witness examination in accordance with the Korean Civil Procedure Act.
Yes, all Hague Evidence Convention Letters of Request are handled by the National Court Administration (“NCA”). The NCA is an administrative body under the Supreme Court of Korea. The NCA acts as the main initial gatekeeper regarding the Hague Evidence Convention Letters of Request and decides whether the letters would be forwarded to the Korean judiciary or rejected and sent back to the originating jurisdiction.
All of the above would theoretically be applicable. In practice, responses to written questions with the consent of all parties involved are the most realistic to obtain.
N/A. Korea did not make any declaration of applicability for privileges existing under the laws of other states (which option is made available by Art. 11 of the Hague Evidence Convention).
Yes, but this threshold is considered to be a low bar from the NCA’s perspective. If the requests are broad and deemed to be an attempt to procure pre-trial discovery from a Korean point of view, they will most likely be rejected at the outset.
While there is no specific statute or rule in this regard, in light of the COVID-19 pandemic, some parties relying on the Hague Evidence Convention have indeed made such requests. In the end, the district court with jurisdiction over the Korean third party would have the ultimate discretion to allow a video deposition.
There is no explicit blocking statute in Korea.
Yes. For Korean citizens or third-country nationals, the process still needs to go through an approved Hague Evidence Convention Request and be reviewed by NCA for final authorization by a Korean district court. On the other hand, if a citizen of the country seeking evidence (who resides in Korea) volunteers to give evidence, Korea permits this process, provided that the taking of evidence is performed by the country’s consular officers or private attorneys either on notice or pursuant to a commission.
In practice, for Korean conglomerates with large in-house legal teams, the consent provided by all the parties can often allow for voluntary deposition practice at locations that are convenient for the witnesses or parties. Korea has historically been more relaxed than Japan about deposition location and logistics when multiple depositions are needed in a large cross-border litigation matter.
Arbitration in Korea is regulated by the Korean Arbitration Act (“KAA”), which is based on the UNCITRAL Model Law. Article 28 provides that the arbitral tribunal may request a court to take evidence or request for the court's assistance in taking evidence. When the arbitral tribunal requests a court to cooperate in taking evidence, the court may order such persons as a witness or document holder to appear before the arbitral tribunal or order such persons to submit necessary documents to the arbitral tribunal. The arbitral tribunal may also ask the court to become directly involved in taking evidence to support the arbitration. When a court takes evidence, the arbitrator or parties may participate in taking evidence with the permission of the presiding judge.