SOUTH KOREA Law and Practice Contributed by: John H Choi, Han Soon Choi, Changhun Lee and Seungjun Woo, Shin & Kim
6. Disclosure/Discovery 6.1 Disclosure/Discovery Procedure
of the materials claims there is a justifiable ground for refusing to submit the materials, the court can order presentation of the materials in order to determine whether the claim is appropriate. In this case, the court should not allow others to view the materials. However, even if the materials to be submitted pursu - ant to the court order are business secrets, the current MRFTA does not consider this as a justifiable ground for refusing to submit if that submission is necessary for proof of damage or calculation of the amount of damages. In this case, the court must designate the scope or persons who can access the materials within the purpose of the court order. If the other party fails to comply with the court order to submit materials without justifiable grounds, the court may recognise the party’s assertion as to the content in the materials to be true. Requirements and Procedure for a Document Submission Order Petition If the court orders the opposing party or a third party to submit a document, the person who is in posses - sion of the document bears the duty of submitting the document unless there is a ground for denial, as provided in the Civil Procedure Act. In this regard, the Civil Procedure Act stipulates that a person who is in possession of a document cannot refuse to submit it in the following cases. • When a party is in possession of documents cited in a lawsuit. • When a petitioner has a private legal right to request that the person who is in possession of the document hand it over or show it. • When a document has been written for the benefit of the petitioner or prepared with regard to the legal relationship between the petitioner and the person in possession of the document; however, this is not applicable to any of the following cases: (a) documents that contain matters related to occupational secrets of a current or former public official, if the consent of the relevant public official or related organisations has not been obtained; (b) documents that contain matters related to information that may lead to the prosecution or conviction of, or the disgrace of, the person
In South Korean law, there is no “discovery” system as in common law. However, the current MRFTA intro - duces court orders that can compel the opposing par - ty to submit materials essential for proving damages or calculating the amount of damages. In addition, in the course of proceeding with a lawsuit, the parties to the lawsuit may follow the procedure for getting the opponent or a third party to submit docu - ments via court in accordance with the Civil Procedure Act. Based on the MRFTA, a court in charge of a dam - ages lawsuit can ask the KFTC to send records related to the MRFTA violations. A party to a lawsuit that wants an opponent or third party to submit documents may ask the court to request that the opponent or third party submit the document voluntarily. Where the opponent or third party does not submit the document voluntarily, the party can petition the court to order the opponent or third party to submit the document, by means of a “document submission order petition”. Requirements and Procedure for Court Orders to Submit Materials Under the system for court orders to submit materials introduced in the current MRFTA, in lawsuits for dam - ages due to collusion, unfair trade practices (exclud - ing unfair support), and collusion by business entities’ organisations, a party may ask the court to issue an order to submit materials necessary for proof of dam - age or calculation of the amount of damages. Upon a party’s request, the court can order the other party to submit the relevant materials (except for material relat - ed to leniency). The system requires a party’s request, and the target of the court’s order to submit materials is the other party. This is distinct from a document submission order under the Civil Procedure Act, which can also be issued to a third party in possession of the document. Even if a party asks the court to order submission of materials, if the holder of the materials has justifiable grounds for refusing to submit the materials, the court cannot order submission of the materials. If the holder
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