SOUTH KOREA Law and Practice Contributed by: Sung Jin Kim, Jay J. Kim, Chunsoo Lee and Joe Kim, Kim & Chang
2.9 Burden of Proof in Product Liability Cases In principle, the party filing the complaint bears the burden of proving the existence of a fault/ defect and the damages. In practice, however, the courts adjudicating product liability cases often mitigate the plaintiff’s burden of proof regarding the defect, considering that the tech - nical and complex nature of a defect makes it inherently difficult to prove by ordinary plaintiffs. Although the requisite standard of proof for a defect is not explicitly codified in the law, the general principle has been that the existence of a defect should be proven by a preponderance of the evidence by the plaintiff. The standard of proof for causation is not defined in the PLA. While, in principle, plaintiffs should prove individual causation in tort cases (including product liability claims) by a prepon - derance of evidence, this standard has been relaxed following a leading Supreme Court case (Supreme Court Case No 98 Da 15934, issued on 25 February 2000) which adopted the same standard codified in the PLA for establishing the existence of a defect for tort cases (that is, the damage (i) was sustained while the product was used normally as intended, (ii) occurred from a cause that is within the practical control of the manufacturer, and (iii) would not normally occur without a defect in the product). 2.10 Courts in Which Product Liability Claims Are Brought Product liability cases, similar to other tort claims arising under the Civil Code, may be initiated in the civil court (ie, a District Court). Jury trials are not available in Korea for tort or product liability cases. A product liability claim is reviewed by a judge (or a panel of three judges if the amount of controversy exceeds a certain threshold). There is no upper threshold award of damages in a civil
litigation and there are no specific procedural requirements for product liability cases. 2.11 Appeal Mechanisms for Product Liability Claims As in any other civil cases, product liability cases may be appealed to the Appellate Division of the District Court or the High Court, which reviews the case de novo. The petition for appeal must be submitted within 14 days of receiving the first instance court decision. A decision of by the Appellate Division of the District Court or the High Court may be appealed to the Supreme Court (the appeal petition must be submitted within 14 days of receiving the decision). The Supreme Court’s review is limited to the question of law and its decision is the final and conclusive. 2.12 Defences to Product Liability Claims The PLA provides the following statutory exemp - tions from liability (or affirmative defences) for the manufacturer: • the manufacturer did not supply the product; • the defect could not have been discovered by the available scientific or technological standards at the time of supply (state of the art defence); • the defect occurred as a result of comply - ing with the legal requirements at the time of supply; or • for suppliers of raw materials, parts, or com - ponents, the defect occurred as a result of following the manufacturer’s specifications/ instructions. The second, third, and fourth exemptions above do not apply if the manufacturer knew or should have known of the defect after supplying the
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