SOUTH KOREA Law and Practice Contributed by: Jin Yeong Chung, Inhak Lee and Seung Hyeon Lee, Kim & Chang
4.5 Applications for Security for Defendant’s Costs When the plaintiff does not have a presence in Korea, or it is obvious from the complaint, written submis- sions, or other case records that the plaintiff’s claim is groundless, the defendant may motion the court to order the plaintiff to pay security for litigation costs. The court shall decide the level of security based on the total amount of costs that the defendant is expect- ed to spend at each level of the lawsuit. In practice, the security does not normally exceed 4% of the claim amount. Subject to court approval, the security for liti- gation costs may be satisfied by way of a surety bond. If the plaintiff fails to pay the security within the period set by the court, the court may dismiss the claim with- out holding a hearing. 4.6 Costs of Interim Applications/Motions Interim applications/motions are not considered as separate procedures. As such, even if a party applies for interim applications/motions, the costs are not calculated separately. The court must consider the amount of the costs incurred in such proceedings when allocating the costs of the entire proceeding in the judgment. 4.7 Application/Motion Timeframe There is no limited or fixed timeframe for the court to review an interim application/motion. It could take a few days to a few weeks. Generally speaking, the scope of discovery in Korea is substantially limited compared to some common law jurisdictions, including the USA. All forms of discovery are conducted by and are under the direct supervision of the court. For example, a party cannot directly ask the other party to produce documents or witnesses. All requests for discovery must be made to the court and must be approved by the court. The judge has wide discretion on whether to allow discovery, the discovery method and the scope of 5. Discovery 5.1 Discovery and Civil Cases
discovery with respect to the parties and also to third parties. Accordingly, although discovery is relatively limited in the general sense, there is some room to obtain evidence through it. When a party fails to comply with the court’s docu- ment production order, the court may draw an adverse inference from the lack of action. The same applies when a party, upon receiving a document production order, intentionally destroys the document or makes it unusable. The court may then draw an adverse infer- ence from the document which was not produced. If it was a third party which did not comply with the court’s document production order, the third party shall be subject to administrative fines of up to KRW5 million. 5.2 Discovery and Third Parties Document production orders can be made to third parties that are not named as a plaintiff/claimant or defendant. In the event that the document holder is a third party, the court must conduct examination by asking relevant questions to the third-party holder or its designee before deciding whether the document in question is to be produced. The court may order document production only after it has completed its examination of the third party in possession of the document or its designee. 5.3 Discovery in This Jurisdiction The parties in possession of the relevant document shall submit the document to the court so that the documents can be evidence that the court can then rely on. If the document is in the possession of the coun- terparty or a third party who is under the obligation to produce such document, the party may request the court to issue a document production order. This request must clearly indicate the following: • the document requested; • the contents of the requested document; • the document holder; • the fact to be proved by the document; and • the grounds by which the document should be produced.
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