Regional Perspective of Korea on HCCH Asia Pacific Week
The regional perspective of Korea on the HCCH Asia Pacific Week held in Manila, the Philippines, is highlighted through Korea's involvement in the HCCH, including its membership dates and the number of cases under the Service and Evidence Conventions. Details on the processing period for these conventions, along with a comparison of requesting and requested state statistics, are also provided.
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October 19 October 19th HCCH Asia Pacific Week HCCH Asia Pacific Week In Manila, the Philippines In Manila, the Philippines th, 2022 , 2022 Regional Perspective of Korea Regarding Service Convention & Evidence Convention Judge Soojin CHO Seoul Western District Court, Korea 1
Korea Joined the HCCH August 20th, 1997 / 45thmember state Service Convention ( signed: January 13th, 2000 / came into force : August 1st, 2000) 79 Contracting Parties Evidence Convention (signed: July 14th, 2009 / came into force : February 12th, 2010) 64 Contracting Parties 2
1. Number of Cases : the Service Convention as a Requesting year as a Requested State Total State 2011 604 317 921 2012 572 323 895 2013 546 299 845 2014 435 398 833 2015 436 401 837 2016 460 453 913 2017 678 516 1194 2018 955 575 1530 2019 867 629 1496 2020 707 552 1259 2021 765 533 1298 (Provided by director of International Affairs, Supreme Court of Korea) 3
2. Processing Period : the Service Convention as of September 7th, 2022 Delayed to send (due to Covid19) year 6m~1y Over 1y returned 0~2m 2~4m 4~6m Ongoing 2014 278 88 21 41 6 1 0 2015 329 61 22 19 3 0 2 2016 269 86 17 12 2 68 6 2017 331 123 18 13 14 175 4 2018 551 163 17 14 9 197 4 2019 554 83 13 23 15 175 4 2020 230 180 52 51 10 177 1 6 457 118 32 18 11 117 2 10 2021 (Provided by director of International Affairs, Supreme Court of Korea) 4
3. Number of Cases : the Evidence Convention as a Requesting year as a Requested State Total State 2010 3 4 7 2011 20 4 24 2012 19 8 27 2013 17 6 23 2014 11 8 19 2015 2 8 10 2016 11 10 21 2017 35 10 45 2018 10 12 22 2019 14 14 28 2020 24 11 35 2021 40 15 55 (Provided by director of International Affairs, Supreme Court of Korea) 5
4. Processing Period : the Evidence Convention as of September 7th, 2022 Delayed ongoin year 0~2m 2~4m 4~6m 6m~1y Over 1y (due to returned g covid19) 2014 0 3 5 0 1 2 0 2015 0 0 0 2 0 0 0 2016 0 0 3 0 0 8 0 2017 0 0 4 0 0 31 0 2018 0 2 1 2 1 4 0 2019 0 7 1 1 0 5 0 2020 0 7 1 1 4 11 0 2021 1 12 7 10 0 7 2 1 (Provided by director of International Affairs, Supreme Court of Korea) 6
Access to Justice Problem Korea had before joining the Service Convention Service of a complaint & writ of summons in Korea by means of DHL/fax (not permitted in Korean legal system) Default judgements Provide official channel for service cross border Officially object to services that are not permitted in Korean legal system (article 8 & 10) The 1965 Service Convention 7
Predictability Recent Supreme Court Decision (December 23rd,2021, 2017da257746 en banc decision) (1) P->D (2) Requests for service (diplomatic channel) Korean Court NZ Court (3) Served to D s husband (4) judgement (5) Asks for recognition of foreign judgement P(NZ) D(KR) *NZ is not a contracting State to the Service Convention The 1965 Service Convention 8
Predictability Recent Supreme Court Decision (December 23rd,2021, 2017da257746 en banc decision) Civil Procedure Act Service Article 178 (Principle of Service by Delivery) (1) Except as otherwise prescribed, a service shall be effected by delivering a certified copy or duplicate of documents to the person on whom service is to be made. Article 186 (Supplementary Service, and Service by Leaving) (1)When a recipient of service has been unavailable at the place of service other than his or her work place, the document may be delivered to his or her clerk, employee or co-habitant, who is man of sense. (2)When a recipient of service has been unavailable at the work place, the document may be delivered to another person under Article 183 (2), or his or her legal representative or employee, including his or her service worker, who is man of sense, unless he or she refuses an acceptance of the document. Article 195 (Method of Service by Public Notice) Service by public notice shall be effected in such a manner that the junior administrative officer, etc. of a court keeps the document to be served and posts the reasons therefor on the court's bulletin board The 1965 Service Convention 9
Predictability Recent Supreme Court Decision (December 23rd,2021, 2017da257746 en banc decision) Timeline Feb 2013 : P filed a suit against D in NZ Aug 2013 : NZ judgement Jun 2014 : P asked for recognition of judgement in KR Jun 2016 & Sep 2017: KR judgement (first & second instance) Sep 2017: appeal filed in Supreme Court Dec 2021: Supreme Court Decision The 1965 Service Convention 10
Predictability Recent Supreme Court Decision (December 23rd,2021, 2017da257746 en banc decision) Civil Procedure Act Recognition of Foreign Judgments Article 217(Recognition of Foreign Judgments) (1)A final and conclusive judgment rendered by a foreign court or a judgment acknowledged to have the same force shall be recognized, if all of the following requirements are met: 2. That a defeated defendant is served, by a lawful method, a written complaint or document corresponding thereto, and notification of date or written order allowing him or her sufficient time to defend (excluding cases of service by public notice or similar), or that he or she responds to the lawsuit even without having been served such documents; 2. That a defeated defendant is served, by a lawful method, a written complaint or document corresponding thereto, and notification of date or written order allowing him or her sufficient time to defend (excluding cases of service by public notice or similar), or that he or she responds to the lawsuit even without having been served such documents; The 1965 Service Convention 11
Predictability Recent Supreme Court Decision (December 23rd,2021, 2017da257746 en banc decision) Previous Published Decision of the Supreme Court service by a lawful method in article 217 (2) in Civil Procedure Act refers to service by an ordinary method, which does not include supplemental service nor service by public notice (July 14th, 1992, SC 92da2585 & January 30th, 2009, SC 2008da65815, etc.) The 1965 Service Convention 12
Predictability Recent Supreme Court Decision (December 23rd,2021, 2017da257746 en banc decision) Finding - changed its view on the scope of service by a lawful method - supplementary service can be service by a lawful method as a requirement for recognition of foreign judgements (as long as certain conditions are met) Reasoning - Otherwise, service must be carried out in a stricter manner - In particular, if the defendant is a corporation, the documents should be directly served to the representative of the company to be recognized in Korea - In this case, it was Korean court who served the documents. If Korean court denied the validity of the service, it would undermine the international credibility of the Korean judiciary The 1965 Service Convention 13
Predictability Recent Supreme Court Decision (December 23rd,2021, 2017da257746 en banc decision) -In line with the Service Convention -Uncertainty can be minimized by joining the Service Convention The 1965 Service Convention 14
Prevent delay Very useful tool for judges when dealing with witnesses abroad Before joining the Evidence Convention : waited a few months, even years for the witness to come (time consuming, expensive) Advanced form of judicial cooperation The 1970 Evidence Convention 15
New trend of Virtual Hearing Efficient, preferred Might overlook international law issues (civil law v. common law) witness exam via zoom, etc. violation of sovereignty Recent work of the HCCH(PB) Guide to Good Practice on the Use of Video-Link under the Evidence Convention Practical handbook(2020) HCCH-ABLI 2021 Webinar The 1970 Evidence Convention 16
A Problem Korea is facing Korea has civil law system that does not allow fishing expedition in evidence taking Conflict with US courts regarding pre-trial discovery Despite declaration on article 23 Need to solve this problem together The 1970 Evidence Convention 17
A Problem Korea is facing Reservations 1. (language) 2. In accordance with Article 33, the Republic of Korea excludes the application within its territory of the provisions of Articles 16 and 17 of Chapter II of the Convention. Reservations Declarations 1. In accordance with Article 8, the Government of the Republic of Korea declares that members of the judicial personnel of the requesting authority of another Contracting State may be present at the execution of a Letter of Request with prior authorization by the competent authority of the Republic of Korea. 2. In accordance with Article 23, the Government of the Republic of Korea declares that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents. The Government of the Republic of Korea further declares that it understands "Letters of Request issued for the purpose of obtaining pre-trial discovery of documents" for the purposes of the foregoing Declaration as including any Letter of Request which requires a person: a. to state what documents relevant to the proceedings to which the Letter of Request relates are, or have been, in his or her possession, custody or power; or b. to produce any documents other than particular documents specified in the Letter of Request as being documents appearing to the requested court to be, or to be likely to be, in his or her possession, custody or power. Declarations The 1970 Evidence Convention 18
Chances to have intensive discussion with other States (expert meeting, etc.) Work as a guide for judges A trigger for judges to pay attention to private international law issues 19
