SOUTH KOREA Law and Practice Contributed by: Jin Yeong Chung, Inhak Lee and Seung Hyeon Lee, Kim & Chang
to be produced. The court may order document production only after it has completed its exam- ination of the third party in possession of the document or its designee. 5.3 Discovery in This Jurisdiction The parties in possession of the relevant docu- ment shall submit the document to the court so that the documents can be evidence that the court can then rely on. If the document is in the possession of the coun- terparty or a third party who is under the obliga- tion to produce such document, the party may request the court to issue a document produc- tion order. This request must clearly indicate the following: • the document requested; • the contents of the requested document; • the document holder; • the fact to be proved by the document; and • the grounds by which the document should be produced. Based on the party’s application, the court may order the document holder to disclose a list of documents which they have in their possession, and/or documents they intend to submit as evi- dence that are related to the party’s application. Obligation to Produce In general, the obligation to produce documents is recognised in the following circumstances: • when the other party possesses the docu- ment that it cited during the lawsuit; • when the applicant party is legally entitled to request the holder of the document to deliver it or make it available for inspection; or • when the document has been prepared for the benefit of the applicant, or prepared as
a result of the legal relationship between the applicant and the holder of such document. Even if the document holder is not under obliga- tion to produce the document, a party may still ask the court to make a formal request that the document holder submit the relevant document to the court. When requested by the court, the document holder has to submit the requested document to the court, unless there are justifi- able reasons not to do so. 5.4 Alternatives to Discovery Mechanisms In relation to discovery, there are no applicable mechanisms other than the Document Produc- tion Order. In practice, the applicant party will make a request for clarification from the coun- terparty, on the basis of which the court will pro- ceed by issuing a Clarification Order (pursuant to Article 137, Korean Civil Procedure Act). In such cases, the counterparty may be required to submit the relevant documents. 5.5 Legal Privilege According to the KCPA, documents containing the advice/work which is the product of law- yers, patent attorneys, certified accountants, tax accountants, doctors, pharmacists, priests, etc, who have a duty of confidentiality under applica- ble laws are protected from disclosure and are not subject to document production orders of the court. Advice from an in-house lawyer who is locally licensed could also be considered privileged to the extent that the contents of the advice satisfy the above requirement. It is the prevailing view that the term “lawyer” in the rel- evant provision of the KCPA indicates lawyers licensed in Korea.
1281 CHAMBERS.COM
Powered by FlippingBook