SOUTH KOREA Law and Practice Contributed by: John H Choi, Han Soon Choi, Changhun Lee and Seungjun Woo, Shin & Kim
12. Appeals 12.1 Basis of Appeal Administrative Lawsuit Against the KFTC
11.2 Costs Dividing Litigation Costs
In filing a suit, the plaintiff pays a certain amount of the litigation costs in accordance with the relevant laws and regulations. When the court makes a deci - sion, it rules on which party should ultimately bear the litigation costs incurred in the course of the trial and the ratio of litigation costs the respective par - ties must bear. Litigation costs are, in principle, to be borne by the losing party, and in the case of partial victory, the ratio of the litigation costs is usually deter - mined according to the percentage of victory between the parties. The specific amount of litigation costs to be borne by the parties will be determined through a separate trial process known as the procedure for confirming litigation costs, and the parties will go through the process of paying the confirmed litiga - tion costs to the other party afterwards. Attorneys’ Fees Attorneys’ fees are also a type of litigation cost, but the full amount of attorneys’ fees is not included in the litigation costs the parties will actually pay. The Supreme Court rules about calculating and includ - ing attorneys’ fees in litigation costs stipulate that the lesser of the amounts calculated, based on a certain standard prepared according to the value of the liti - gation and the actual amount of attorneys’ compen - sation paid, is included in the litigation costs to be borne by the parties. In most cases, the prevailing party receives a refund that is less than the amount the party actually spent on attorneys’ fees. Collateral According to the Civil Procedure Act, if the court finds that the provision of collateral for litigation costs is necessary, as the plaintiff does not have an address, office, or a place of business in South Korea, or when it is obvious that the plaintiff’s claim is unreasonable, upon request of the defendant, the court may order the plaintiff to provide collateral for litigation costs.
In the case of an Administrative Lawsuit Against the KFTC, the losing party can file a final appeal with the Supreme Court within two weeks after they receive the service of the Seoul High Court’s decision. Unlike gen - eral cases, the Seoul High Court becomes the court of first instance for an Administrative Lawsuit Against the KFTC, and thus, the Administrative Lawsuit Against the KFTC actually operates as a two-tiered court sys - tem. In order to appeal to the Supreme Court, the appellant must file a petition of final appeal with the Seoul High Court, which may or may not state the grounds for appeal. If the appellant submits the peti - tion without stating the grounds for the final appeal, the appellant must submit the grounds for appeal to the Supreme Court within 20 days from the date of receiving notice that the Supreme Court has received the record of the lawsuit from the Seoul High Court. If the appellant does not submit the grounds for appeal within that period, the Supreme Court will dismiss the final appeal. Since the Supreme Court operates as a court that addresses questions of law, grounds for appeal that can be claimed are limited, in principle, to grounds that the judgment of the Seoul High Court is incorrect from a legal perspective. A statement that the Seoul High Court has incorrectly admitted the facts cannot be provided as grounds for appeal. The Supreme Court will dismiss the final appeal if it determines that the grounds for appeal cannot be admitted. If it determines that the grounds for appeal can be admitted, the Supreme Court will reverse the ruling of the Seoul High Court and, in principle, remand the case to the Seoul High Court to reconsider the case. Antitrust Damage Lawsuit In the case of an Antitrust Damage Lawsuit, the dis - trict court becomes the court of first instance, and the party that loses in the first instance trial can appeal by filing a petition of appeal with the court of first instance, while the party that loses in the appeal can file a petition of final appeal with the Court of Appeal.
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