SOUTH KOREA Law and Practice Contributed by: Jin Yeong Chung, Inhak Lee and Seung Hyeon Lee, Kim & Chang
the class members must be 1/10,000 or more of the defendant company’s total number of out- standing shares; • the claims of the class members must have com- mon questions of law and fact; and • the suit must constitute an appropriate and effec- tive means of realising the rights of the class mem- bers or protecting their interests. The results of the class action lawsuit will bind all of the class members except for those who have opted out. 3.8 Requirements for Cost Estimate There are no particular requirements when providing a cost estimate of the potential litigation to the client. There are no interim applications/motions available before a trial or hearing of a claim for the purpose of case management. As a temporary remedy, before the court renders a judgment, a plaintiff may file for pre- liminary attachment or provisional injunction. These procedures are not a part of the main action. 4.2 Early Judgment Applications There is no system under Korean law that would be comparable to a “motion to dismiss” or a “motion for summary judgment” as in the USA. If the claim of the plaintiff is groundless, the defendant may point this out in an answer or a brief and make such arguments at the hearing. The court shall dismiss the plaintiff’s claim if it is proven groundless. 4.3 Dispositive Motions There are no dispositive motions (ie, application for summary determination or judgment) available in Korea that can be made before a trial. 4.4 Requirements for Interested Parties to Join a Lawsuit An interested third party may join a lawsuit that is pending between the plaintiff and the defendant and become a party to the case under the following cir- cumstances: 4. Pre-Trial Proceedings 4.1 Interim Applications/Motions
• if the third-party claims that the subject matter of the lawsuit belongs to the third party; or • if the rights of the third party are likely to be infringed by the outcome of the lawsuit. A third party who has a legitimate interest in the law- suit can also participate in the lawsuit as an interven- ing party for the purpose of assisting one of the parties to the lawsuit. Given that an intervening third party may participate in the lawsuit only to support one of the parties, the intervening third party will not be con- sidered a litigant of the lawsuit, and will not be allowed to take actions unfavourable to, or inconsistent with, the relevant supporting party. A third party who intends to join or participate in the pending lawsuit shall express their intention to the court orally or in writing and must receive the court’s approval. Court Decisions and Third Parties The parties may have the effect of the court decision extending to a third party as if the third party partici- pated in the lawsuit, by notifying the third party that the relevant lawsuit is pending in the court. Either a plaintiff or a defendant may ask the court to notify a third party who has a legitimate interest in the current case of the fact that the lawsuit is currently pending at the court. Upon service of such notice, the third party has an opportunity to participate in the pending case as an intervening third party. The third party may freely choose whether to partici- pate in the pending lawsuit. Regardless of whether the third party participates in the lawsuit, however, once the third party has received the notice, in a subse- quent litigation between the third party and the party of the previous lawsuit, the third party shall be prohib- ited from making arguments that are contrary to facts and/or legal reasoning that constitute the basis of the judgment in the previous litigation. For this reason, the third party typically elects to participate in the pending case when it is informed of the fact that the relevant lawsuit is pending.
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