SOUTH KOREA Law and Practice Contributed by: John H Choi, Han Soon Choi, Changhun Lee and Seungjun Woo, Shin & Kim
In an Antitrust Damages Lawsuit, in terms of sub - stance, the Civil Act and the MRFTA apply, and the victim may choose the law that is the basis for the claim in filing the lawsuit. In terms of procedure, the Civil Procedure Act applies. In an Antitrust Criminal Lawsuit, various laws such as the Criminal Act and MRFTA can be applied, and procedurally, the Criminal Procedure Act is applicable.
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 Under the Civil Procedure Act, a court may order a party or third party to produce a document where: (i) the holder has referred to it in the proceedings; (ii) the applicant has a private-law right to demand delivery or inspection; or (iii) the document was prepared for the applicant’s benefit or concerns the legal relation - ship between the applicant and the holder. The Act also imposes a broader production duty, subject to specified exceptions. The principal exceptions cover documents containing protected official secrets; material that may expose the holder or specified relatives to criminal prosecu - tion, conviction or disgrace; protected professional, technical or trade secrets; documents prepared solely for the holder’s own use, subject to statutory qualifica - tions; and public-duty documents held by a current or former public official. On an application for a document-production order, the court hears the holder’s position on possession and any asserted ground for refusal. If necessary, the court may inspect the document privately to decide whether an exception applies. If a party fails without justification to comply with a production order, or destroys or makes the document unusable to prevent its use, the court may treat the opposing party’s allegations about the document’s
6. Disclosure/Discovery 6.1 Disclosure/Discovery Procedure
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 documents via court in accordance with the Civil Procedure Act. 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 of the materials claims there is a justifiable ground for refusing to submit the materials, the court can order
163 A NTITRUST LI T IGATI O N 2026
CHAMBERS.COM
Powered by FlippingBook