SOUTH KOREA Law and Practice Contributed by: Sung Jin Kim, Jay J. Kim, Chunsoo Lee and Joe Kim, Kim & Chang
product but failed to take appropriate measures to prevent the damage caused by the defect. As discussed inn 2.1 Product Liability Causes of Action and Sources of Law , the existence of a defect may be presumed if the plaintiff can prove that the damage: • was sustained while the product was used normally as intended; • occurred from a cause that was within the practical control of the manufacturer; and • would not normally occur without a defect in the product. In practice, courts have frequently accepted the defendant’s defence relating the normal use of the product (ie, the first element), but rarely uphold the defence based on the second and third elements. 2.13 The Impact of Regulatory Compliance on Product Liability Claims As noted in 2.12 Defences to Product Liabil- ity Claims , the PLA provides certain statutory exemptions to liability, including “the defect occurred as a result of complying with the legal requirements at the time of supply” . However, this defence does not apply if the manufacturer knowingly (including constructive knowledge) supplied a defective product. 2.14 Rules for Payment of Costs in Product Liability Claims In principle, the losing party is responsible for paying the litigation costs, including court fees and attorneys’ fees. In the case of a partial judg - ment, the losing party may be asked to bear a portion of such costs and fees. Attorneys’ fees are calculated based on a court formula that takes into consideration the claim amount (ie,
not the actual attorneys’ fees incurred by the opposing party). 2.15 Available Funding in Product Liability Claims Litigation funding is almost non-existent in Korea and has only very recently been introduced; however, it is not widely utilised. That said, plaintiffs who are unable to fund the full cost of litigation retain counsel through, for instance, contingency fee arrangements. 2.16 Existence of Class Actions, Representative Proceedings or Co- Ordinated Proceedings in Product Liability Claims There is no US-style class action system in Korea for product liability or tort cases. Qualified consumer civic groups may bring rep - resentative actions against product manufactur - ers, but such proceedings are limited to seeking injunctive relief, such as an order to discontinue conduct that infringes on consumers’ rights. Claims for compensation for damages are not permitted. Where a defective product has affected a large group of individuals, the most common approach is for the consumers to file a group action where a single lawsuit is filed in court naming multi - ple plaintiffs. It is possible to appoint a repre - sentative plaintiff to litigate on behalf of other plaintiffs, in which case the judgment issued on the representative plaintiff would apply to all other plaintiffs. If a representative plaintiff is not appointed, the court will issue a judgment for each of the plaintiffs.
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