The following summarizes a gist of evidentiary and litigation rules operating in Korean trial court setting. At the outset, it should be noted that there is no jury system in court trials in Korea. (Provided, however, that in 2008, Korea will introduce jury system in limited criminal court cases, but the jury decision will not have any binding effect on judge and can be used only as reference by judges.)

Therefore, an attorney does not have chance to be theatrical in front of the jurors, and there is less drama than trials in the U.S. Also, in Korea, the judge in fact acts as the jury, investigator and judge, all in one. In Korean litigation case, the following evidentiary rules apply:

1. The judge, rather than the parties' lawyers, takes the main responsibility for gathering and sifting the evidence.
2. By law, the judge can freely request or take evidence that has not been requested, offered, or introduced by the parties.
3. By law, the judge has the legal obligation to actively investigate the facts until she deems that the information gathered is sufficient to justify a judgment (rather than being constrained by the evidence presented by the parties.)
4. By law, the judge can refuse to collect or admit evidence requested by the parties, if she deems it irrelevant to the case.
5. By law, the judge can refuse to collect or admit evidence requested by the parties, based on considerations of time and efficiency.
6. Statements of fact that were not directly known or perceived by the witness, but only heard from a third person, may be admitted as evidence.
7. Expert witnesses (specialist court advisors) are NOT appointed or presented by the parties. Instead, they are selected by the judge herself from an independent list of outsiders.
8. By law, the judge does not need to pre-qualify the questions before they are asked to the witnesses. However, questions are submitted in advance to the judge, and the judge may limit the questions.
9. By law, there must be a written or magnetic record of all evidence introduced at trial.
10. In relation to admissibility of documentary evidence at lower-level civil trial courts in Korea, simple or uncertified copies are admissible even if there is evidence against their authenticity, in which case their probative value may be reduced.
11. In relation to weight of documentary evidence at lower-level civil trials in Korea, the authenticity and probative value of all admissible documentary evidence is freely weighted by the judge.

In view of the above-noted rules, a foreign company bringing a lawsuit in Korea could become frustrated by the lack of discovery system where a party to the lawsuit could require the other party to produce evidence. So, prior to filing a formal action, it becomes more important for a party (contemplating to file a lawsuit) to review all evidence available for proving its claims because, without sufficient evidence that could be presented to a Korean court, any successful outcome of a lawsuit could be in doubt.

If you require any legal assistance in connection with filing a lawsuit, please contact Hoon Lee (hoonlee@sigonglaw.com), a foreign attorney working at Sigong Law P.C. (www.sigonglaw.com).