Civil proceedings begin when a plaintiff or a representing attorney files a complaint with a district court, a branch court, or a municipal court. When a complaint is filed, a court serves a defendant with a duplicate and requires the defendant to file a written answer within 30 days. If the defendant fails to file a written answer within such time limit, the court may render a judgment without hearings. If the defendant submits a written answer, the court holds hearings (proceedings hereby both parties appear before the court to clarify their respective positions on disputed issues as well as to examine witnesses), and then renders a judgment. If necessary, preparatory procedures for the hearings, such as a written pleading process or a preparatory date for pleading, etc. can be held.
Under the previous system, a court moved directly to hearings without a pleading process when a complaint was lodged. Thus, it was usual that a number of hearings were held repeatedly at three or four-week intervals with little or slow progress. However, along with the implementation of the new Civil Procedure Act, it is expected that fully-prepared and centralized hearings will eliminate the inefficiency of the previous system and result in the reduction of hearings, in most cases, to just one or two. Furthermore, hearings are administered in a sincere and efficient manner giving a parties the fullest opportunity to make their oral statements before the court.
If necessary, a plaintiff as well as a defendant may hire a lawyer as his/her representative during trial proceedings, including a pleading process and hearings. However, in the case that a single judge sits on the bench to hear a case, each party with the court's prior permission may appoint a person who is not an attorney-at-law as a representative. There is a national legal aid system which provides a financial assistance, under certain conditions, to a person who cannot afford to provide an attorney and/or other forms of litigation costs.
The Expert Commissioner System (ECS) was established by the amendment of Code of Civil Procedure in July 2007 and introduced into practice in August 2007. The ECS was established to enhance the quality of court proceedings and judgments in the areas requiring skilled professional and technical disputes involving construction, medical, intellectual property rights in accordance with the request of the party involved or by a court decision. Expert Commissioners advise a fair and neutral point of view based on their professional knowledge and expertise to the judges and parties involved in legal disputes, therefore leading to substantial and efficient trials.
Originating from Patent Courts, the age of the Electronic Case Filing System (ECFS) commenced on April 2010. With the ECFS, the concerned parties or respective representatives can submit the petitions or other related documents, be served documents, and can access own litigation records electronically 24 hours a day, 7 days a week without making physical trips to the courts. Since the ECFS will facilitate courts to remedy the infringement of one’s right properly by decreasing the duration of a trial period and promoting transparency in trial procedures, the ECFS greatly attributes to the enhancement of the confidence of the public in judicial offices. The E-filing of cases which was first implemented in civil cases in 2011 further expanded its service to family and administrative cases in 2013, insolvency cases in 2014 and civil enforcement and non-litigation cases in 2015.
Measures to record pleadings through the audio recording of trial system began on January 1, 2015. The audio recording of trial system was introduced to create conditions to better conduct fact-finding hearings by enhancing transparency on trial procedure and focusing capabilities more on discovering the substantive truth in the courtroom rather than copying reports. With the introduction of the audio recording of trial system, examination of witness in civil, family and administrative cases, procedure for examination of parties, procedure for examination of witnesses and defendants in criminal cases will all be audio recorded ex officio. Also, audio recording service is provided on the date for pleading or date for trial upon request of the parties involved.
The losing party who is dissatisfied with the findings of facts or a judgment rendered by a trial court can appeal the judgment within two weeks from the date the judgment is served. In general, high courts hear appeals with the exception that the appellate panels of the district courts hear appeals when a single judge sat on the bench to hear a case in a trial court. Appeal proceedings are similar to trial proceedings, and the party is granted an opportunity to make new allegations and to produce new evidence.
The party who is dissatisfied with the judgment of the court of appeals may appeal to the Supreme Court, the court of last resort, within two weeks from the date the judgment is served. As the Supreme Court hears only matters of law, an appeal cannot be lodged with the Supreme Court unless the judgment of the court of appeals erred in conclusion of law or appeal proceedings were in grave contravention of law.
A small claim case is the case in which a plaintiff claims payment of money, fungibles, or securities not exceeding 20 million Korean won (approximately US$17,700 as of October 2015). A district court, a branch court, and a municipal court take charge of small claim suits, which amount to over 70 percent of all civil suits. A trial for a small claim adopts various procedures to expedite the resolution of cases. Here are some examples: When a complaint is filed and there seems no real dispute between a plaintiff and a defendant, a court may render a decision urging the defendant to discharge his/her obligation without asking the reaction of the defendant (a dissatisfied defendant may raise an objection). Some persons in intimate family relations with the parties may represent the parties without court's permission. Evidence may be taken easily. Reasons need not be stated in the judgment. A judgment may be rendered on the same day just after hearings are closed. The grounds for final appeal are strictly limited.
Trial proceedings on a small claim, which feature expeditious and convenient processes in resolving disputes, contribute to the protection of the rights of the public. Only about two percent of the judgments rendered by trial courts on small claim cases are appealed.
A civil conciliation is a legal proceeding whereby a judge or a conciliation committee hears allegations of the parties in dispute, and taking various factors into account, and either advises them to make mutual concessions and to seek a compromised solution or renders a compulsory decision to that effect. Civil conciliation proceedings are very useful methods for dispute resolution in that they are more convenient, expeditious and inexpensive than adjudication proceedings, and lead to the ultimate resolution of disputes through an agreement by the parties. The Supreme Court encourages and takes various steps for more frequent use of conciliation proceedings. The number of civil cases resolved in conciliation proceedings has been steadily increasing each year.
The Supreme Court of Korea introduced the Standing Conciliation Committee in 2009. A standing commissioner is appointed by the Minister of National Court Administration from among licensed attorneys who have more than 15 years of legal experience. The term of office of commissioners is two years. Standing commissioners may conduct affairs necessary to deal with conciliation cases upon entrustment by a conciliation judge and in doing so standing commissioners will have the same authority as a conciliation judge. The Mediation Center was each established in Seoul and Busan District Courts in April, 2009 to support standing commissioners of the mediation center with their administrative work. As of 2015, a total of 31 standing commissioners are working at 10 Mediation Centers in district or high courts nationwide.
A civil execution procedure includes a procedure of compulsory execution as well as a procedure of foreclosure. In the past, the provisions of civil execution formed a part ofthe Civil Procedure Act. However, with the introduction of thenew Civil Procedure Act, the provisions on civil execution have been separated to constitute the Civil Execution Act. The Civil Execution Act contains a vast number of new provisions aimed at improving execution procedure.
Compulsory execution is the procedure whereby the creditor obtains a satisfaction of his/her claim, with the assistance of the state, from the property of the debtor who does not voluntarily perform his/her obligation even though the judgment has been rendered against him/her. Authorities other than the judgment, such as a payment order, or a notarial deed can also be a basis for execution. The property of the debtor, which is subject to execution, includes real property, ships, automobiles, construction equipment, aircraft, movable property, and bonds. It is the court that enforces the compulsory execution on most property. However, in case of movable property, the marshal enforces the compulsory execution.
The most frequently used compulsory execution is execution sale of real property whereby the court seizes and sells real property of the debtor by an open tender. The proceeds are distributed among creditors.
Foreclosure is a legal proceeding instituted by the lender (the mortgagee) to force a sale of the mortgaged property in order to satisfy the unpaid debt secured by the property. The procedure of foreclosure is similar to that of execution sale of real property.
These methods are devised to secure the effectiveness of compulsory execution as well as to enable the judgment creditor to easily obtain satisfaction of his/her claim.
In the event that a debtor does not discharge a pecuniary obligation and it is difficult to ascertain the property of the debtor, the creditor who is entitled to motion for compulsory execution, may request the court to order the debtor to tender a list of property, which clearly specifies property in his/her possession. If the debtor fails to comply with the court ' s order or tenders a false list of property, he/she is subject to imprisonment, fine or confinement.
If the debtor does not discharge his/her obligation within six months after a monetary judgment becomes final and conclusive, fails to comply with the court ' s order to tender a list of property, or tenders a false list of property, the creditor may request the court to enter him/her in the debt defaulter roster. When the debtor is listed in the debt defaulter roster, such information is provided to financial institutions and the debtor may face difficulty in carrying on future credit transactions.
The Civil Execution Act introduces a new method through which inquiries about the debtor ' s property can be made. If the debtor fails to comply with the court ' s order to tender a list of property, or tenders a false list of property, the creditor may request the court to make inquiries about the debtor ' s property. The court, pursuant to the creditor ' s request, makes inquiries at the institutions, which keep information on the debtor ' s real property or financial assets in the form of electronic data, and orders them to submit such information. The creditor, then, can make use of information submitted by the institutions and move to the execution stage.
If the debtor hides or disposes his/her property before the compulsory execution procedure is commenced, the creditor is obstructed from obtaining satisfaction of the claim. To prevent such attempts and to secure the debtor ' s property, the court may order provisional attachment or provisional disposition, pursuant to the creditor ' s request. If it is necessary to preserve the execution of the monetary claim, the court may order the debtor ' s property to be put under provisional attachment. Provisional disposition may be granted for the purpose of setting the temporary state of affairs in regard to disputed legal relations or preserving the execution in regard to the claim for delivery of specific immovable or movable property.
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