SOUTH KOREA Law and Practice Contributed by: Jin Yeong Chung, Inhak Lee and Seung Hyeon Lee, Kim & Chang
3.3 Jurisdictional Requirements for a Defendant The Act on Private International Law (the “Act”) applies when there is a question of whether a Korean court may exercise jurisdiction over a dispute that involves a foreign party or a subject located outside Korea. Under the aforementioned statute, a Korean court has jurisdiction over a dispute when either party or the dispute itself has “substantial nex- us” with Korea. When determining whether there is such nexus, the court shall consider, among others, fairness and judicial economy. According to the Act, a Korean court has juris- diction under the following circumstances: • when either party is domiciled or has resi- dence in Korea; • when either party has a principal place of business or operations in Korea, or was established or incorporated under the laws of Korea; • when either party has a place of business in Korea and the subject of the dispute relates to such business; • when either party engages in continuous and organised business activities in Korea and the dispute relates to such business activities; or • when the subject of the dispute is assets located in Korea, or the defendant’s assets with respect to which the plaintiff may seek an attachment are located in Korea. Furthermore, if a court has jurisdiction over any one claim among multiple claims asserted in a dispute or has jurisdiction over any one party among multiple parties to a dispute, the court may exercise jurisdiction over the entire dispute in certain circumstances.
Even if none of the above conditions is met, unless the case involves an issue for which cer- tain specified courts have exclusive jurisdiction (eg, the cases involving certain corporate mat- ters for which only the local court has jurisdic- tion), then jurisdiction can be recognised in the following cases: • if the parties have agreed to the jurisdiction of the district court in writing; or • if the plaintiff filed a complaint to the court that does not have a jurisdiction but the defendant does not raise an objection regard- ing the jurisdiction and proceeds with pre- senting its defence at the hearing. 3.4 Initial Complaint Complaints must clearly state the name, address and other identifiable elements of the parties, the tenor of claim and cause of action. The com- plaint may be amended during the course of the litigation proceedings through a written submis- sion under the below conditions: • the underlying factual basis of the claim remains unchanged; • the amendments do not result in significant delays to the proceedings; • the amended claims do not fall within the exclusive jurisdiction of a different court; and • the hearings are not closed. It is permissible for the plaintiff(s) to amend the cause of action or the remedy sought so long as the basis of the claims remains the same. As a practical matter, it is not uncommon for plaintiff(s) to amend the claim amount after fil- ing a complaint. 3.5 Rules of Service In Korea, the service of process is done ex offi- cio – ie, by the court. In principle, service of
1277 CHAMBERS.COM
Powered by FlippingBook