SOUTH KOREA Law and Practice Contributed by: Byung Chang Lee, DR & AJU LLC
2. Procedures and Trials 2.1 Disclosure of Defendants’ Assets Application for Asset Disclosure Pursuant to Article 61 of the Civil Enforcement Act, a creditor who has received a final enforce - able court decision requesting the defendant to pay a certain amount of money can file an appli - cation with the court requiring the defendant to disclose their assets (held in the name of the defendant). Without the final court’s decision, the creditor cannot ask the court to require the debtor to disclose asset information in advance. After reviewing the application for asset dis - closure, the court can issue an order requiring the defendant to disclose asset lists, including all positive and negative assets, by a specified date. Unless the debtor files an objection to the court order within one week after the service date, the court order will be finalised, and the court will appoint a hearing date, requiring the defendant to attend the hearing and submit the asset lists. In the asset lists, the defendant must submit information on: • paid transfer of real estate within one year; • paid transfer of property other than real estate to their relatives within one year; and • any gift excluding ceremonial gifts within two years before service of the court’s order. Sanctions for Non-compliance of Asset Disclosure If the defendant does not follow the court’s order in this regard, there are sanctions such as being detained for not longer than 20 days. Addition - ally, the creditor can ask the court to search for or screen assets in the name of the defendant through financial institutions, governmental
organisations, etc. The creditor does not have to provide a deposit. 2.2 Preserving Evidence “Preservation of evidence” is a method of inves- tigating evidence to be used to prove the facts in advance before or during litigation. Some commentators argue that it is desirable to oper - ate it flexibly so that it can be used as a pretrial evidence collection system under Korean law, which does not recognise a pretrial discovery system. A party who wants to preserve important evi - dence before filing a civil claim can ask the court to preserve this evidence by filing an application for evidence preservation. In this application, the applicant is required to explain why evidence preservation is urgent and necessary before filing a claim. If evidence is not investigated in advance, there must be circumstances in which it will be difficult to use the evidence later. The evidence requested for preservation can include witness examination or other documents or digital files that can be easily contaminated. In the case of CCTV or communications data, the retention period is set at several months, so if it is not secured in advance in the investiga - tion procedure, it may be difficult to secure it in subsequent procedures. However, a party can - not conduct a physical search of documents at the defendant’s residence or place of business directly, even if the court has issued a preserva - tion decision. It is up to the court whether to accept this kind of application, and the court’s fee forms part of future litigation costs.
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