SOUTH KOREA Law and Practice Contributed by: Jin Yeong Chung, Inhak Lee and Seung Hyeon Lee, Kim & Chang
A provisional injunction order, depending on the urgency of the case, may be rendered within a month of the application. It could take one or two months longer if the court decides to hold a hearing. An out-of-hours arrangement is not available in Korea. 6.3 Availability of Injunctive Relief on an Ex Parte Basis According to the Civil Execution Act, an injunc- tive relief can be obtained on an ex parte basis without hearing the case from the parties. How- ever, for injunctive orders in which the temporary position against the disputed relation of right will be fixed, the court shall schedule a court hear- ing, unless the purpose of the injunctive order cannot be achieved if the parties wait until the hearing is held. 6.4 Liability for Damages for the Applicant The applicant can be held liable for damages suffered by the respondent, if the respondent succeeds in the main action. The court may order the applicant to provide an adequate amount of security, when the court issues an injunctive relief. The same applies when the injunctive relief is granted ex parte. 6.5 Respondent’s Worldwide Assets and Injunctive Relief A mareva injunction is not available or recog- nised in Korea. Preliminary attachment of assets is available in Korea, but it is limited to assets in Korea, as Korean courts do not have jurisdic- tion to grant application to attach assets out- side of Korea. In the case of monetary claims, the claimant may preliminarily “attach” a claim the respondent has against a third-party debtor even if the third-party debtor resides outside of Korea. However, since the preliminary attach-
ment of a claim becomes effective when the preliminary attachment order is served on the third-party debtor, it would be difficult to enforce the preliminary attachment order over a claim against the third-party debtor residing outside of Korea. A provisional injunction over a subject located outside Korea cannot be granted, unless the Korean court has jurisdiction over the disputed subject located abroad. However, under the Act on International Private Law, even in cases where a Korean court has no jurisdiction over a dispute or where the subject of the dispute is located abroad, a petitioner may still seek a preliminary attachment or an interim injunction, which if granted, would be effective only in Korea, so long as the petitioner has an urgent need for such relief. 6.6 Third Parties and Injunctive Relief In principle, preliminary attachments could be made only on the defendant (debtor)’s property, and not on the property of third parties. How- ever, if the subject asset constitutes a claim that the defendant has against a third-party debtor, the court may order a third party to refrain from performing its payment obligation to the defend- ant while the case is pending. 6.7 Consequences of a Respondent’s Non-compliance There are no civil or criminal sanctions applica- ble to a respondent who fails to comply with the terms of an injunction under Korean law. How- ever, the court may state in the injunction order that the respondent must pay a fine if they vio- late a provisional order of continual forbearance.
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