SOUTH KOREA Law and Practice Contributed by: Jin Yeong Chung, Inhak Lee and Seung Hyeon Lee, Kim & Chang
Based on the party’s application, the court may order the document holder to disclose a list of documents which they have in their possession, and/or docu- ments they intend to submit as evidence that are related to the party’s application. Obligation to Produce In general, the obligation to produce documents is recognised in the following circumstances: • when the other party possesses the document that it cited during the lawsuit; • when the applicant party is legally entitled to request the holder of the document to deliver it or make it available for inspection; or • when the document has been prepared for the benefit of the applicant, or prepared as a result of the legal relationship between the applicant and the holder of such document. Even if the document holder is not under obligation to produce the document, a party may still ask the court to make a formal request that the document holder submit the relevant document to the court. When requested by the court, the document holder has to submit the requested document to the court, unless there are justifiable reasons not to do so. 5.4 Alternatives to Discovery Mechanisms In relation to discovery, there are no applicable mech- anisms other than the Document Production Order. In practice, the applicant party will make a request for clarification from the counterparty, on the basis of which the court will proceed by issuing a Clarification Order (pursuant to Article 137, Korean Civil Procedure Act). In such cases, the counterparty may be required to submit the relevant documents. 5.5 Legal Privilege According to the KCPA, documents containing the advice/work which is the product of lawyers, patent attorneys, certified accountants, tax accountants, doctors, pharmacists, priests, etc, who have a duty of confidentiality under applicable laws are protected from disclosure and are not subject to document pro- duction orders of the court. Advice from an in-house lawyer who is locally licensed could also be consid- ered privileged to the extent that the contents of the
advice satisfy the above requirement. It is the prevail- ing view that the term “lawyer” in the relevant provi- sion of the KCPA indicates lawyers licensed in Korea. 5.6 Rules Disallowing Disclosure of a Document The document holder may refuse to produce the doc- ument in the following cases: • government/official documents; • documents which may incriminate or defame the requested person or their relatives; • documents to which they have an obligation of confidentiality or which contain trade secret infor- mation; or • a document prepared by the requested person for their own use (such as diary and notes). If there is risk of confidential information being leaked in the process of reviewing whether there is any legiti- mate basis for refusing production of the document, the court may, based on its discretion, hold an in cam- era session and order the document holder to first submit the requested documents to the court for its review. In such case, the court is prohibited from dis- closing those documents to other persons, including the parties to the case during its internal review. Nei- ther the parties nor their counsel can participate in this “in camera proceeding”. 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief One can seek provisional remedies, even before filing
the complaint, in the form of: • preliminary attachment; or • provisional injunction.
A preliminary attachment is used to preserve and freeze the property or assets of a debtor (who is often the defendant in a lawsuit). This serves as security for discharge of a monetary payment obligation by the defendant. The courts will allow preliminary attach- ments if the applicant establishes a need to preserve the assets, a prima facie case in its favour, and shows that the assets are owned by the debtor (defendant).
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