The main legislation governing the procedures for civil litigation in South Korea are the Korean Civil Procedure Act (KCPA) and the Civil Procedure Rules (the rules by the Supreme Court). The KCPA provides the protocol for determining the court with jurisdiction over cases and sets guidelines for conducting litigation proceedings such as how to commence the action, the filing of pleadings, the submission of evidence, etc. The Civil Procedure Rules supplement the KCPA in the specific areas where the KCPA authorizes the Supreme Court to prescribe rules.

Under the Korean Court Organization Act, the Korean judicial system features a three-tiered hierarchy, consisting of the:

• Court of First Instance (District Courts);
• Court of Appeals (High Courts or appellate divisions within District Courts); and 
• Supreme Court.

In Korea, there is no separate court dedicated to commercial litigation. Commercial litigation is classified as civil cases. Commercial disputes typically begin in a District Court with jurisdiction over the matter, unless the case falls under the purview of one of the specialized courts. If an appeal is filed against a first instance judgment, the appellate court — either a High Court or the appellate division of the District Court — reviews the case de novo. The Supreme Court, as the highest court in the land, possesses the authority to conduct a final judicial review.^[1] However, it only hears appeals against appellate court judgments that concern questions of law.

^{[1] Korean Court Organisation Act, Article 11.}

In the context of Korean law, pre-action considerations are typically not mandated. However, certain proceedings necessitate the completion of specific pre-conditions in line with the relevant legal provisions before a lawsuit can be filed. For example, when commencing a securities-related class action, the representative plaintiff is required to first obtain prior court approval by submitting a complaint and an application for approval of action.^[2] In addition, there are certain pre-action requirements required for administrative trials for policy reasons. For example, in cases involving tax revocation claims, plaintiffs must first exhaust all available remedies through a tax administration trial before proceeding with the lawsuit.^[3] Pre-action requirements are therefore matter specific and only apply in certain circumstances. 

^{[2] Framework Act on Consumers, Article 74.}

^{[3] Framework Act on National Taxes, Article 56.}

Alternative dispute resolution (ADR) methods have gained prominence in South Korea for resolving large commercial disputes, with arbitration and mediation emerging as the two primary approaches.

Arbitration in South Korea has a long history of use in international trade disputes, but is now expanding its reach into domestic business disputes, including those in the construction and technology sectors. Following the enactment of the Korean Arbitration Act (KAA) in 1966 and the establishment of the Korean Commercial Arbitration Board (KCAB) in the same year, South Korea has continued to build its reputation as an arbitration-friendly jurisdiction. Notably, South Korea is the first country in East Asia to adopt the 1985 UNCITRAL Model Law on International Commercial Arbitration when revising the KAA in 1999. In 2016, South Korea further incorporated the 2006 amendments to the UNCITRAL Model Law (2006 UNCITRAL Model Law) in the latest revision of the KAA. 

Mediation in South Korea can take various forms: it can be conducted by the judge presiding over the litigation, a dedicated full-time mediator, or an ad hoc mediation committee composed of one judge and two or more private citizens. Mediation for civil disputes which are conducted by judges and mediation commissioners in courts are regulated by the Korean Judicial Conciliation of Civil Dispute Act. The flexibility and adaptability of mediation make it an increasingly attractive ADR method for large commercial disputes in the country. South Korea is a signatory to the United Nations Convention on International Settlement Agreements Resulting from Mediation, also known as the Singapore Convention on Mediation.[4]

^{[4] See www.uncitral.un.org/en/texts/mediation/conventions/international_settlement_agreements/status.}

In South Korea, civil courts are less procedure-oriented than those in the United States, the United Kingdom, Germany, and other Western countries, allowing for greater flexibility for judges and for the parties involved. The time it takes for court proceedings to reach trial depends on several factors, such as the complexity and nature of the case, the number and availability of witnesses and experts, the court’s workload and schedule, and the approaches taken by the parties. The proceedings in a typical commercial dispute before the court of first instance may take up to one or two years from the date proceedings are issued for the court to render its judgment. 

On average, once a plaintiff files a complaint, a defendant usually has 30 days to respond. If a defendant does not respond by this timeline, the court will usually set a hearing date to render a judgment. A defendant can still submit an answer by the date of the hearing to resume the proceedings, failing which the court judge will proceed to give a decision without the input of the defendant. Korean courts typically schedule a preliminary hearing before the main hearing, often holding multiple preliminary hearings at four- to eight-week intervals. After the preliminary hearing, courts usually schedule subsequent hearings four weeks apart. 

On 1 June 2020, in response to the COVID-19 pandemic, an amendment to the Civil Procedure Rules was implemented, permitting preliminary hearings to be conducted remotely. For a remote preliminary hearing to take place, consent must be obtained from all parties involved and submitted to the court.

South Korea is a civil law jurisdiction. Therefore, in general, as is the norm in other civil law jurisdictions, a party to civil litigation proceedings is not under an obligation to disclose adverse documents. Parties to litigation proceedings are only required to present evidence supporting their claims or defences, unless the court specifically orders the disclosure of adverse documents in the possession or control of either party. There is no common law rule of discovery and no formal pretrial discovery. No disclosure obligations will arise unless and until the court has made an order for a party to disclose documents upon a party’s specific application within the proceedings.^[5] 

A party may request that the court issue an order for the submission of specific documents held by the opposing party or a third party. The requesting party must identify such specific documents or information sought and demonstrate its relevance and necessity for resolving the dispute. The other party can object to the production order on various grounds, such as irrelevance, privilege, confidentiality, or public interest considerations or on the basis that to do so would be unduly burdensome. Article 345 of the KCPA specifically requires the applicant to identify: 

• the title of the document; 
• the content or implication of the document;
• the holder of the document;
• the fact the applicant intends to prove certain facts through the document;
• what kind of obligation the producer falls under set forth in Article 344 of the KCPA, which lists the categories of obligation including: 
  • when the producer referred to the specific document in its submission;
  • if the applicant has certain rights under civil law against the producer to request for such a document; or 
  • the document has been created for the benefit of the applicant or has been created as a result of the legal relationship between the applicant and the producer. 

That said, the court may even limit the scope of disclosure by ordering production of a part of a document if the rest is unnecessary or contains matters that can be legitimately withheld.^[6]

As the requirements for the application show there is very narrow scope allowed under the KCPA, unlike discovery or document production in other common law jurisdictions. However, where the requesting party does not know the full particulars of documents held by the opposing party or a third party, the court may issue an order directing the person in possession to submit a list of documents held by that party and a description of each document.^[7]

The court also possesses the authority to order parties or third parties to produce documents or information deemed relevant and necessary for resolving the dispute at its discretion. In cases of non-compliance, the court can impose sanctions, including drawing adverse inferences concluding that the allegation the other party seeking production of the document is true with respect to the document^[8] (limited to the authenticity of the document and its content, not the facts to be proved by the document),^[9] or levying fines.^[10]

^{[5] Korean Civil Procedure Act, Article 344.}

^{[6] KCPA, Article 347(1), (2).}

^{[7] KCPA, Article 346.}

^{[8] KCPA, Articles 349 and 350.}

^{[9] Supreme Court Judgment Case No. 93Da41938 dated 23 November 1993.}

^{[10] KCPA, Article 351.}

The courts are generally allowed to examine any person as a witness, with the exception of certain public officials who must first obtain consent from the relevant public office.^[11] Once summoned, witnesses are expected to appear before the court and provide oral testimony. However, in exceptional circumstances, a witness statement may be submitted in lieu of oral testimony, or a witness may be permitted to testify through documents, as approved by the presiding judge.^[12]

The court may issue a summons, compelling the witness to appear and give testimony under oath.^[13] Witnesses who fail to appear in court without a valid reason may face a penalty of up to KRW 5 million (approximately USD 3,800).^[14] If the witness still fails to appear in court after the penalty assessment, they may be subject to imprisonment of up to seven days^.[15] However, this is rarely imposed on non-party witnesses in practice. In addition to the above, the courts can also issue a subpoena requiring the witness to appear before the court, if a witness fails to appear in court without a justifiable reason.^[16] The subpoena is enforced by a police officer or court clerk under the direction of a prosecutor or by an enforcement officer to escort the witness to the court.^[17] However, this is seldom used in civil proceedings. 

Following an amendment to the KCPA on 30 September 2016, the remote video testimony system was introduced to enable witnesses facing travel constraints (or situations that make in-person interactions with plaintiffs or defendants challenging), to give evidence in civil proceedings.^[18] The first instance of remote video testimony in a trial occurred on 16 November 2016, at the Seoul Central District Court. Since then, the use of remote witness examinations has been steadily increasing in South Korea. 

^{[11] KCPA, Article 303.}

^{[12] KCPA, Article 310.}

^{[13] KCPA, Article 319.}

^{[14] KCPA, Article 311(1).}

^{[15] KCPA, Article 311(2).}

^{[16] KCPA, Article 312.}

^{[17] KCPA, Article 312 which adopts the Korean Criminal Procedure Act mutatis mutandis. Korean Criminal Procedure Act, Article 81; Korean Enforcement Officer Act, Article 6.}

^{[18] KCPA, Article 327-2.}

The final judgment of a South Korean court includes a decision on the allocation of costs associated with the proceedings.^[19] Where an appellate court renders a final judgment altering the lower court’s judgment, or where the court to which a case has been remanded or transferred renders a final judgment, the court decides on the allocation of litigation costs including those incurred in the proceedings of other courts.^[20]

Generally, the losing party is responsible for bearing the costs.^[21] However, the court has discretion to allocate costs between the parties. In cases where a party achieves partial success in its claims, the court can decide the ratio or amount of litigation costs that each party must bear.^[22] The court may require the successful party to bear all or part of litigation costs that the court deems to have been unnecessary for its claim or defence, or that were attributable to the successful party’s delay of the proceedings.^[23] In the case of a partial success or loss in the proceedings, the allocation of litigation costs for each party is determined by the court in its discretion.^[24] The taxation of actual litigation costs incurred in the litigation will be determined through a separate taxation process once the judgment becomes final and conclusive.

Litigation costs typically include stamp fees, service fees, witness travel expenses, expert examination and investigation costs, and attorney’s fees. However, it is important to note that the reimbursement of attorney’s fees is heavily capped by the limit set by Supreme Court Regulation on Inclusion of Attorney’s Fee into Litigation Cost (RAF),^[25] which sets forth the method to calculate the amount of attorney’s fee to be included in litigation costs. This increases in proportion to the amount in dispute, but may be reduced or increased, taking into account the complexity of the case, the necessity of hiring attorneys and other circumstances.^[26] If a party has paid attorney’s fee exceeding the amount determined by the court in accordance with the RAF, the excess amount is excluded from the litigation costs and has to be borne by the party. 

^{[19] KCPA, Article 104.}

^{[20] KCPA, Article 105.}

^{[21] KCPA, Article 98.}

^{[22] KCPA, Article 101.}

^{[23] KCPA, Articles 99 and 100.}

^{[24] KCPA, Article 101.}

^{[25] KCPA, Article 109.}

^{[26] RAF, Rules 3 and 6.}

In South Korea, three primary types of interim measures are available, as described below:

1. Provisional attachment is a measure that preserves defendant’s assets (such as real estate, accounts receivable, and chattels) as security for the discharge of a monetary obligation.^[27] The requirements for a provisional attachment include:

• a reasonable probability of success in the substantive claim;^[28] and 
• an urgent need for preservation of the assets to be attached.^[29] 

To obtain a provisional attachment, an applicant must file an application with the district court that has jurisdiction over the location of the assets to be attached or the court that has jurisdiction over the substantive claim. The attachment application is reviewed and determined on an ex parte basis. Typically, the court requires the submission of security before issuing an attachment order.^[30] The provision of security must be made by way of making a deposit of money or securities in court, or submitting a payment guarantee letter issued by a financial institution approved by the court, within a time frame specified by the court.^[31] If the applicant fails to provide a security in compliance with the court order, the application for attachment will be dismissed. The courts will require foreign parties who do not have an address in Korea to lodge cash as a deposit and therefore this needs to be advised to the client from the outset. 

2. Provisional injunctions on property under dispute are a means of preserving a direct claim on a specific property which forms the subject matter of the dispute (including real estate, account receivables, and chattels).^[32] The requirements for this type of provisional injunction include:

• reasonable probabilities of success in the substantive claim;^[33] and
• an urgent need for preservation of the assets under dispute.^[34] 

To obtain a provisional injunction, an applicant must file an application with the court that has jurisdiction over the merits of the underlying claim or the district court that has jurisdiction over the location of the specific property in dispute. The application for an injunction is reviewed and determined on an ex parte basis, and the court usually requires the submission of security before issuing an injunction order.^[35] The provision of security must be made by way of making a deposit of money or securities in court, or submitting a payment guarantee letter issued by a financial institution approved by the court, within a time frame specified by the court.^[36] If the applicant fails to provide a security in compliance with the court order, the application for attachment will be dismissed.

3. Provisional injunctions to preserve the status quo are used to preserve the integrity and enforceability of a claim when specific performance or injunctive relief is sought. The requirements for this type of injunction include reasonable probability of success on the substantive claim and an urgent need for preservation, such as the risk of imminent irreparable harm. The threshold for the second requirement is very high. To obtain a provisional injunction to preserve the status quo, an applicant must file an application with the court that has jurisdiction over the underlying claim or the district court that has jurisdiction over the location of the objects in dispute. The application for this provisional injunction is determined after the court has heard from both parties. The court typically requires the submission of security before issuing an injunction order. When ordering specific performance or injunctive relief, the court may also make other orders to assist with compliance (i.e., an order to pay a daily monetary penalty for not complying with an injunction order).

^{[27] Korean Civil Execution Act (KECA), Articles 276, 277.}

^{[28] KCPA, Article 299(1).}

^{[29] KCEA, Article 300(2).}

^{[30] KCEA, Article 280(2), (3).}

^{[31] KCPA, Article 122.}

^{[32] KCEA, Article 300.}

^{[33] KCPA, Article 299(1).}

^{[34] KCEA, Article 300(2).}

^{[35] Korean Civil Execution Act (KCEA), Article 280(2), (3).}

^{[36] KCPA, Article 122.}

South Korean courts are known for their pro-arbitration stance. The KAA serves as the legislative framework for arbitration in South Korea. Initially enacted in 1966, the KAA underwent a complete revision in 1999 to incorporate the UNCITRAL Model Law 1985. It was further amended in 2016 to adopt the changes and developments introduced in the UNCITRAL Model Law 2006, with the current KAA becoming effective on 30 November 2016. As the legal framework for arbitration in South Korea closely mirrors the latest UNCITRAL Model Law, the country is recognized for providing a reliable and predictable environment for conducting arbitration. 

Arbitration in South Korea benefits from the country’s adherence to the UN Convention on Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention).^[37] This streamlines the recognition and enforcement of arbitral awards from other New York Convention signatory jurisdictions. The steady growth of Korea’s international arbitration is also well illustrated by relevant statistics. For instance, in 2020, KCAB administered 405 new arbitration cases with an aggregate dispute amount of USD 540 million.^[38] From the 405 cases, 69 were international cases, which construed the grounds for setting aside an award or refusing the enforcement of an award in a very narrow fashion. Accordingly, South Korean courts have only refused the enforcement of a foreign arbitration award in an extremely limited number of cases.

The pro-arbitration approach of South Korean courts has been exemplified in many court decisions over the years. For example, the Supreme Court has also ruled that it is not legally permissible to apply for an injunction requesting the court to suspend ongoing arbitration proceedings on the grounds that the arbitration agreement between the parties is null or void, inoperative or incapable of being performed.^[39]

^{[37] See www.newyorkconvention1958.org/index.php?lvl=notice_display&id=1776.}

^{[38] KCAB Annual Report 2021, see www.kcabinternational.or.kr/user/Board/comm_notice.do?BD_NO=174&CURRENT_MENU_CODE=MENU0017&TOP_MENU_CODE=MENU0014.}

^{[39] Supreme Court Judgment Case No. 2017Ma6087 dated 2 February 2018.}

In South Korea, arbitrators have the authority to grant interim relief in accordance with the KAA, which is based on the UNCITRAL Model Law. The amended KAA, effective as of 30 November 2016, also permits the judicial enforcement of interim measures issued in arbitral proceedings subject to the Act.^[40] Under the KAA, unless the parties agree otherwise, an arbitral tribunal can, on the application of any party to the arbitration, order interim measures necessary to prevent irreparable harm, preserve the status quo, or maintain evidence.^[41] However, the KAA does not allow tribunals to grant preliminary orders on an ex parte basis without notice to the other party.^[42]

The 2016 KCAB International Arbitration Rules, applicable to international arbitrations administered by the KCAB, also allow parties to request the arbitral tribunal to order interim measures necessary to prevent current or imminent harm or prejudice to the arbitral process. The arbitral tribunal can order interim measures such as security for costs, disclosure of assets, or preservation of assets or evidence.

^{[40] KAA, Article 18-7.}

^{[41] KAA, Article 18(2).}

^{[42] KAA, Article 18-2.}

The findings of a tribunal in an arbitral award cannot be appealed.

That said, a foreign award can be set aside according to the laws of the place of the arbitration and by the court thereof. A domestic award can be challenged by filing a lawsuit with the Korean court to set aside the award within three months of the parties receiving an authentic copy of the award.^[43]

Article 36 of the KAA stipulates the grounds for setting aside an arbitration award. First, an arbitral award may be set aside by the court if the party making the application establishes that: 

• a party to the arbitration agreement lacked capacity at the time of the arbitration agreement under the applicable law, or the arbitration agreement is invalid under the law chosen by the parties to govern the agreement (or, if not specified, under Korean law);
• the party making the application did not receive proper notice of the appointment of the arbitrators or the arbitral proceedings, or was otherwise unable to present its case;
• the award addresses a dispute not covered by or subject to the arbitration agreement or contains decisions on matters beyond the scope of the arbitration agreement; or
• the composition of the arbitral tribunal or the arbitral procedure did not align with the parties’ agreement or the KAA.^[44]

Additionally, the court may independently set aside the award if it determines that:

• the subject matter of the dispute cannot be resolved through arbitration under Korean law; or
• the recognition and enforcement of the award conflicts with Korean policy.^[45]

As noted from the above, the court cannot review the merits of the arbitration award or set aside the award on its own motion.

^{[43] KAA, Article 36.}

^{[44] KAA, Article 36(2)(1).}

^{[45] KAA, Article 36(2)(2).}

South Korea acceded to the New York Convention which applies to foreign arbitral awards rendered in a contracting state and relating to commercial disputes, as defined by Korean law.

South Korea also joined the Convention on the Settlement of Investment Disputes between States and Nationals of Other States 1965 (ICSID Convention) in 1967.^[46] The ICSID Convention applies to arbitral awards rendered under the auspices of the International Centre for Settlement of Investment Disputes (ICSID) between a contracting state and a national of another contracting state insofar as it concerns an investment dispute.

^{[46] See www.icsid.worldbank.org/about/member-states/database-of-member-states.}

In South Korea, enforceable judgments in commercial matters can be categorized into two main types: domestic and foreign judgments. Domestic judgments are final and conclusive judgments rendered by a Korean court, which can be enforced by filing an application for enforcement with the competent execution court.^[47] Enforceable domestic commercial judgments include money judgments, default judgments, and judgments ordering specific performance. In contrast, declaratory judgments and judgments made without notice to the other party are not enforceable under Korean law.

Enforceable foreign judgments are final and conclusive judgments rendered by a foreign court, or judgments acknowledged to have the same force, such as arbitral awards. They can be enforced by obtaining a judgment of execution from the competent recognition court if the foreign court had jurisdiction over the dispute according to Korean law or international treaties, the defendant was properly served or appeared before the foreign court, the foreign judgment does not violate Korean public policy, and there is reciprocity between Korea and the foreign country regarding the recognition and enforcement of judgments.^[48] The Supreme Court of Korea has not permitted the enforcement of foreign judgments where service was made by a public notice.^[49]

A Korean court will issue a judgment of execution if a foreign judgment meets the above conditions, without inquiring into the substantive issues of the foreign judgment.^[50]

Enforceable foreign commercial judgments include money judgments, default judgments (provided that service of process was validly made), and judgments ordering specific performance under the same conditions as domestic judgments. Excluded foreign commercial judgments are declaratory judgments, judgments made without notice, judgments or other decisions granting interim or provisional measures (because Korean courts do not have contempt powers), enforcement orders, judgments of enforcement that carry out foreign judgments of enforcement, and pre-judgment attachment orders or awards.

^{[47] KCEA, Article 26.}

^{[48] KCPA, Article 217.}

^{[49] KCPA, Article 217.}

^{[50] KCEA, Article 27.}

A party seeking to enforce a foreign judgment must obtain a judgment of execution from the competent recognition court under Article 26 of the KCEA. The party must file an application for a judgment of execution with the recognition court, along with the following documents: 

• a certified copy of the foreign judgment and its Korean translation; 
• a certificate issued by the foreign court or a competent authority confirming that the foreign judgment is final and conclusive; and 
• a certificate issued by the South Korean embassy or consulate in the foreign country confirming that there is reciprocity between South Korea and the foreign country regarding the recognition and enforcement of judgments.

If the recognition court grants an order to execute, the party can proceed to enforce the foreign judgment by filing an application for enforcement with the competent execution court.

For foreign arbitral awards originating from a signatory state of the New York Convention, a party seeking to enforce must first obtain a judgment of execution from the competent recognition court declaring its lawfulness.^[51] The party must file an application for a judgment of execution with that court, along with the following documents: 

• an authentic copy of the arbitral award and its Korean translation; and 
• an authentic copy of the arbitration agreement and its Korean translation. 

The recognition court will examine whether the foreign arbitral award meets the requirements for recognition and enforcement under the KAA, which are based on Article V of the New York Convention. If the foreign arbitral award arises from a non-contracting state to the New York Convention, then the KCEA and the KCPA will apply. ^[52] If the recognition court grants a judgment of execution, the party can proceed to enforce it by filing an application for enforcement with the competent execution court.

In South Korean enforcement proceedings, the court only examines whether the foreign judgment satisfies the requirements for recognition and enforcement under the KCPA, without assessing the merits of the foreign judgment. Therefore, the subject matter of an enforcement proceeding is only concerned with whether the foreign judgment is capable of recognition and enforcement in South Korea, and not with the merits of the substantive claims underlying the foreign judgment. Consequently, a decision by a South Korean court to recognise and enforce a foreign judgment in South Korea does not carry any determinative effect on the merits of the foreign judgment. This means that even after a South Korean enforcement decision becomes final and executed, the foreign judgment may still be challenged based on the rules of the original forum of the foreign judgment.

In light of this, when enforcing a foreign decision in South Korea, parties have various avenues for challenging enforcement beyond domestic proceedings, including directly contesting the foreign judgment itself.

^{[51] KAA, Article 39.}

^{[52] KCPA, Article 217 and KCEA, Articles 26(1) and 27.}

Once an enforcement order for a foreign judgment is obtained, the enforcement procedure is the same as for domestic judgments. To proceed with enforcement, the creditor must obtain a writ of execution from the court clerk, which can then be submitted to an enforcement officer.^[53]

Compulsory execution is the most common method used when a creditor, with the assistance of the state, seeks satisfaction of their claim from the debtor’s property, in cases where the debtor does not voluntarily fulfil their obligations, even after a judgment has been rendered against them. The property of a judgment debtor that may be subjected to execution includes real property, ships, automobiles, construction equipment, aircraft, movable property, and bonds. In most cases, the court enforces compulsory execution on immovable property; however, for movable property, the marshal enforces compulsory execution.

The sale of immovable real property is the most frequently used compulsory execution method. In this process, the court seizes the debtor’s real property and sells it through an open tender. The successful party can enforce the judgment against the property or assets of the unsuccessful party by requesting the court to place that property or assets in a public auction. The proceeds from the sale are used to satisfy the judgment debt.

^{[53] KCEA, Article 28.}

Generally, once a final judgment has been rendered by the court, it is not possible to apply for interim measures pending enforcement. This is because the requirement for interim measures under Korean law includes an urgent need for preservation of assets. In that regard, the Korean Supreme Court stated that if a creditor has obtained a final judgment for compulsory execution, there is no urgent need for preserving assets, and therefore, interim measures should not be granted.^[54]

Nevertheless, it is important to note that Korean courts also allows for an exception in specific cases where it is clear that the judgment debtor may take steps to frustrate a judgment creditor from enforcing the judgment.^[55] In these exceptional circumstances, the court may grant interim measures pending enforcement.

^{[54] Korean Supreme Court Judgment Case No. 2005Da7672 dated 26 May 2005.}

^{[55] Seoul High Court Judgment Case No. 74Na2148 dated 15 November 1974.}