SOUTH KOREA Law and Practice Contributed by: Jin Yeong Chung, Inhak Lee and Seung Hyeon Lee, Kim & Chang
• if the plaintiff filed a complaint to the court that does not have a jurisdiction but the defendant does not raise an objection regarding the jurisdic- tion and proceeds with presenting its defence at the hearing. 3.4 Initial Complaint Complaints must clearly state the name, address and other identifiable elements of the parties, the tenor of claim and cause of action. The complaint may be amended during the course of the litigation proceed- ings through a written submission under the below conditions: • the underlying factual basis of the claim remains unchanged; • the amendments do not result in significant delays to the proceedings; • the amended claims do not fall within the exclusive jurisdiction of a different court; and • the hearings are not closed. It is permissible for the plaintiff(s) to amend the cause of action or the remedy sought so long as the basis of the claims remains the same. As a practical matter, it is not uncommon for plaintiff(s) to amend the claim amount after filing a complaint. 3.5 Rules of Service In Korea, the service of process is done ex officio – ie, by the court. In principle, service of process is com- pleted when a court officer or a mailman delivers the documents directly to the person to be served. How- ever, if certain conditions are met, service of process can be done by leaving the documents at or sending the documents to the place where service should have been completed. If the address of the defendant is unknown and there is no other way to serve, the court may allow the documents to be served through public notice. The mechanism of service of process for a party residing outside of Korea depends on whether they reside in a member state of the “Hague Convention on Service” (the Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters). If the foreign party resides in a member state, the process under the Hague Conven-
tion on Service will apply. Otherwise, the service will be done in accordance with the process set by the Act on International Judicial Cooperation for Civil Mat- ters, by which the service of the relevant court docu- ment shall be entrusted by the presiding judge to the Korean ambassador, minister or consul stationed in that foreign country or to the competent government authority of that foreign country. If certain conditions are met, service of process to a person or a corpora- tion with an address in a foreign country may be done through public notice. 3.6 Failure to Respond Once the defendant is served with the complaint, they are required to submit an answer to the court within 30 days from the date of service of the complaint (except for when the service is done through a pub- lic notice), which is extendable. The defendant is not time-barred from submitting an answer, even after this 30-day period. However, if a defendant does not sub- mit a written answer to the complaint at all, the Korean Civil Procedure Act (KCPA) empowers the court to issue a default judgment without holding a hearing. Under a default judgment, the court may deem that the defendant has admitted the facts and claims set out by the plaintiff. 3.7 Representative or Collective Actions In Korea, the class action system recognised in the USA is available only to claimants who sustain dam- ages from certain types of securities transactions. There have been efforts to expand the area to include product liability in particular, but such efforts have not yet resulted in actual legislation. The Securities-Related Class Action Act provides that class actions can be used to recover certain types of securities-related damages, including damages aris- ing from false disclosure, insider trading or market manipulation. Similar to the class actions in the USA and some common law jurisdictions, there must be a certifiable class and their claims should have common questions of law and fact. The following requirements must be met to certify a class: • the suit must involve 50 or more class members and, at the time of the action that constitutes the cause of the lawsuit, the sum of the shares held by
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