SOUTH KOREA Law and Practice Contributed by: Jin Yeong Chung, Inhak Lee and Seung Hyeon Lee, Kim & Chang
process is completed when a court officer or a mailman delivers the documents directly to the person to be served. However, if certain condi- tions are met, service of process can be done by leaving the documents at or sending the docu- ments to the place where service should have been completed. If the address of the defendant is unknown and there is no other way to serve, the court may allow the documents to be served through public notice. The mechanism of service of process for a party residing outside of Korea depends on whether they reside in a member state of the “Hague Convention on Service” (the Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters). If the foreign party resides in a member state, the process under the Hague Convention on Service will apply. Otherwise, the service will be done in accordance with the process set by the Act on International Judicial Cooperation for Civil Mat- ters, by which the service of the relevant court document shall be entrusted by the presiding judge to the Korean ambassador, minister or consul stationed in that foreign country or to the competent government authority of that foreign country. If certain conditions are met, service of process to a person or a corporation with an address in a foreign country may be done through public notice. 3.6 Failure to Respond Once the defendant is served with the com- plaint, they are required to submit an answer to the court within 30 days from the date of service of the complaint (except for when the service is done through a public notice), which is extend- able. The defendant is not time-barred from sub- mitting an answer, even after this 30-day period. However, if a defendant does not submit a writ- ten answer to the complaint at all, the Korean
Civil Procedure Act (KCPA) empowers the court to issue a default judgment without holding a hearing. Under a default judgment, the court may deem that the defendant has admitted the facts and claims set out by the plaintiff. 3.7 Representative or Collective Actions In Korea, the class action system recognised in the USA is available only to claimants who sustain damages from certain types of securities transactions. There have been efforts to expand the area to include product liability in particular, but such efforts have not yet resulted in actual legislation. The Securities-Related Class Action Act pro- vides that class actions can be used to recover certain types of securities-related damages, including damages arising from false disclosure, insider trading or market manipulation. Similar to the class actions in the USA and some common law jurisdictions, there must be a certifiable class and their claims should have common questions of law and fact. The following requirements must be met to certify a class: • the suit must involve 50 or more class mem- bers and, at the time of the action that consti- tutes the cause of the lawsuit, the sum of the shares held by the class members must be 1/10,000 or more of the defendant company’s total number of outstanding shares; • the claims of the class members must have common questions of law and fact; and • the suit must constitute an appropriate and effective means of realising the rights of the class members or protecting their interests. The results of the class action lawsuit will bind all of the class members except for those who have opted out.
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