SOUTH KOREA Law and Practice Contributed by: John H Choi, Han Soon Choi, Changhun Lee and Seungjun Woo, Shin & Kim
contents as true. Different procedural consequences apply where a non-party fails to comply. 6.2 Legal Professional Privilege Historically, attorney-client privilege (ACP) has not been recognised under Korean law. However, that changed in January 2026, when the National Assem - bly passed amendments to the Attorney-at-Law Act formally recognising ACP for the first time. Under the amended Act, clients (including prospective clients) and their attorneys are, in principle, entitled to with - hold from investigative authorities and third parties confidential communications exchanged for the pur - pose of obtaining or providing legal advice, as well as documents and materials (including electronic records) prepared in connection with legal represen - tation during investigations or regulatory proceedings. This protection is subject to limited exceptions. In particular, ACP would not apply where (i) the client consents to disclosure, (ii) a major public interests require disclosure, such as where the attorney has participated in the client’s criminal conduct, includ - ing the destruction of evidence or the harbouring of offenders, (iii) disclosure is necessary for the lawyer to exercise or defend the lawyer’s rights in a dispute with the client; or (iv) another statute specially pro - vides otherwise. Although the newly introduced ACP will take effect on 20 February 2027, it will have retroactive application to attorney-client communications and documents or materials (including electronic materials) made, exchanged, or created before its effective date. 6.3 Leniency and Settlement Agreements In principle, the MRFTA stipulates that the KFTC and its officials may not provide information or data regarding leniency applicants to others unrelated to the handling of the case. However, should the leni - ency applicant consent, or if it is necessary in order to file or carry out a lawsuit related to the case, such information or data can be provided to others. The KFTC publicly discloses the terms of its settle - ment decisions. However, a settlement decision does not constitute a formal admission by either the KFTC or the relevant undertaking that the conduct in ques -
tion violated the MRFTA. Accordingly, no person may rely solely on the existence or contents of a settlement decision to assert that an undertaking’s conduct con - stituted a violation of the MRFTA.
7. Witness and Expert Opinions 7.1 Witness Procedure
A court can admit facts based on a witness statement. A witness statement can be made both orally and in writing. In principle, a witness statement is subject to cross-examination, but cross-examination is not con - ducted in exceptional cases where a witness submits a written affidavit. A court sometimes only requires a written affidavit from a witness when the case does not concern factual grounds that need to be verified through cross-examination. It is sufficient for a wit - ness to make a statement, and they do not bear the burden of providing evidence to support the authen - ticity of the statement. 7.2 Expert Witness Role and Procedure Expert witnesses are often utilised where one of the issues in a lawsuit requires special learning and expe - rience. The procedure for the expert witness state - ment is the same as for the general witness statement. The expert witness statement can be made both orally and in writing, and is subject to cross-examination in principle. A party does not need to obtain court approval to submit expert statements in writing, but they must obtain court approval if they conduct an interrogation of the expert in court or if they request an expert’s appraisal. Courts do not require experts to produce joint statements in advance of a trial indicating the areas in which they agree or disagree. In addition to receiving expert opinions or question - ing experts as witnesses to investigate expert evi - dence, courts can also adopt other measures such as requesting experts to appraise the issues of the trial, or follow the process of simultaneously seeking opinions from multiple experts.
164 A NTITRUST LI T IGATI O N 2026
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