SOUTH KOREA Law and Practice Contributed by: Jin Yeong Chung, Inhak Lee and Seung Hyeon Lee, Kim & Chang
In case of the provisional injunction, there are gener- ally two types. • The most common type of provisional injunction is to temporarily prohibit the debtor from dispos- ing of their property which is the subject matter of the dispute. The injunctions may be issued in cases where, if the existing situations are altered, the party becomes unable to exercise their rights, or there is concern over substantial difficulties in exercising it. • The other type of provisional injunction is to tem- porarily fix the position of the disputed right. This type of provisional injunction is issued when the petitioner is likely to incur substantial injury before the court can render a final judgment in its favour. This type of preliminary injunction is different from other types of provisional remedies in that instead of securing the future enforcement of a favourable judgment, it seeks to protect the petitioner from present injuries caused by delays in the enforce- ment of their rights. Korean law and jurisprudence are silent on whether anti-suit injunctions, barring a parallel litigation in a foreign court, are allowed. 6.2 Arrangements for Obtaining Urgent Injunctive Relief The court usually issues a preliminary attachment order within two to three weeks from the application. Depending on the urgency of the matter, a decision may be issued within one to two weeks. A provisional injunction order, depending on the urgency of the case, may be rendered within a month of the application. It could take one or two months longer if the court decides to hold a hearing. An out- of-hours arrangement is not available in Korea. 6.3 Availability of Injunctive Relief on an Ex Parte Basis According to the Civil Execution Act, an injunctive relief can be obtained on an ex parte basis without hearing the case from the parties. However, for injunc- tive orders in which the temporary position against the disputed relation of right will be fixed, the court shall schedule a court hearing, unless the purpose of the
injunctive order cannot be achieved if the parties wait until the hearing is held. 6.4 Liability for Damages for the Applicant The applicant can be held liable for damages suffered by the respondent, if the respondent succeeds in the main action. The court may order the applicant to provide an ade- quate amount of security, when the court issues an injunctive relief. The same applies when the injunctive relief is granted ex parte. 6.5 Respondent’s Worldwide Assets and Injunctive Relief A mareva injunction is not available or recognised in Korea. Preliminary attachment of assets is available in Korea, but it is limited to assets in Korea, as Korean courts do not have jurisdiction to grant application to attach assets outside of Korea. In the case of mon- etary claims, the claimant may preliminarily “attach” a claim the respondent has against a third-party debtor even if the third-party debtor resides outside of Korea. However, since the preliminary attachment of a claim becomes effective when the preliminary attachment order is served on the third-party debtor, it would be difficult to enforce the preliminary attachment order over a claim against the third-party debtor residing outside of Korea. A provisional injunction over a subject located outside Korea cannot be granted, unless the Korean court has jurisdiction over the disputed subject located abroad. However, under the Act on International Private Law, even in cases where a Korean court has no jurisdic- tion over a dispute or where the subject of the dispute is located abroad, a petitioner may still seek a pre- liminary attachment or an interim injunction, which if granted, would be effective only in Korea, so long as the petitioner has an urgent need for such relief. 6.6 Third Parties and Injunctive Relief In principle, preliminary attachments could be made only on the defendant (debtor)’s property, and not on the property of third parties. However, if the sub- ject asset constitutes a claim that the defendant has against a third-party debtor, the court may order a
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