South Korea

• Pages: 353-364

353

CHAPTER XVII

SOUTH KOREA

A. Introduction

With the rise of international transactions and a consequent increase

in lawsuits involving Korean parties, there is a pressing need for U.S.

attorneys to obtain evidence located in Korea for use in U.S. courts.

However, this process may feel unintuitive and unfamiliar due to the

fundamental differences in the discovery systems of the two countries.

Unlike the United States that employs an adversarial system of

adjudication often found in common law countries, South Korea follows a

“hybrid” of the inquisitorial and adversarial models.1 With the mixture of

inquisitorial elements in the Korean legal system, obtaining evidence in

Korea tends to be more restrictive than in the United States under its wide-

ranging discovery methods.2

Against this backdrop, Section B explores Korea’s overarching legal

framework, with a particular emphasis on the statutes and international

treaties relating to international judicial cooperation for the taking of

evidence. Section C provides a step-by-step overview of the requisite

procedures guiding the examination of evidence.

B. Legal Framework

There are statutes and treaties that pertain to the taking of evidence for

use in foreign courts. Specifically, the following laws should be

considered when the evidence sought is located in Korea:

• The Act on International Judicial Mutual Assistance in Civil

Matters (AIJMA),3 and its subsidiary regulations.

1. SUK KWANG HYUN, INTERNATIONAL CIVIL PROCEDURE LAW 259

(Pakyoungsa ed., 2012).

2. The practical differences in the methods and scope of discovery between

Korea and the United States will be explained in detail below.

3. Act on International Judicial Mutual Assistance in Civil Matters, Act. No.

4342, Mar. 8, 1991, as amended by Act No. 11690, Mar. 23, 2013 (S. Kor.),

translated in Korea Legislation Research Institute online database,