Asian Law Centre

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School

BRIEFING PAPER | 13
A BRIEF INTRODUCTION TO THE KOREAN
JUDICIAL SYSTEM AND COURT HIERARCHY
SUBIN CHO
ALC BRIEFING PAPERS

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2021

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 A Brief Introduction to the Korean Judicial
System and Court Hierarchy
Abstract
This paper introduces the Republic of Korea’s judicial system and court hierarchy. It
outlines the jurisdiction of the Constitutional Court and three-tiered court system and
the qualifications and appointments of judges. It also introduces citizens’ participation
in criminal trials and alternative dispute resolution mechanisms available in Korea,
including arbitrations and civil conciliation proceedings. This paper concludes by
discussing some current controversial issues in law and society in Korea.

Subin Cho
Subin was a research assistant at the Asian Law Centre during the
three years she studied JD at Melbourne Law School. She is an
associate at Baker McKenzie (Sydney).

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 A Brief Introduction to the Korean Judicial
System and Court Hierarchy

Subin Cho1

1. STRUCTURE OF KOREA’S JUDICIAL SYSTEM AND THE

HIERARCHY OF THE COURTS
Korea’s Judicial System Since Independence
The Republic of Korea (hereafter ‘Korea’) is a country in East Asia, constituting the
southern part of the Korean Peninsula with a population of 50.4 million (OECD, 2019).
It is a democratic country with regular presidential elections held every five years.2
Korea has been a member of the OECD since 1996, and is recognised as the 12th
largest economy in the world by GDP (Silver, 2019). Korea has a long history, but the
judicial system in its present form has existed for only seven decades. Korea has a
civil law tradition, which is based on its Constitution promulgated in 1948, three years
after independence was obtained from Japan. Despite the significant influence of the
European and Japanese civil law traditions, more recently, the legal system has been
influenced by the law of the United States of America.

The Constitution has been amended nine times, most recently in 1987. The separation of
powers is embodied in the three Chapters of the Constitution that divide the institutions
of government: ip-bub [Legislature] in Chapter 3, Haeng-jung [Executive] in Chapter
4 and Sa-bub [Judiciary] in Chapter 5 of the Constitution. Judicial independence is
expressly provided by art 103 of the amended 1987 Constitution.3 The Courts have
the power to decide all legal disputes except some constitutional issues which must
be decided by the Constitutional Court. The powers to examine the qualifications of
lawmakers and to discipline them are vested in the National Assembly (Supreme Court

1 The author is indebted to her Advisor, Associate Professor Stacey Steele, for all her invaluable guidance,
constructive feedback and continuous support. Stacey is an academic and practising lawyer specialising
in comparative insolvency law in the Asia-Pacific, Japanese law and society, legal education and financial
services law. The author is also grateful for Professor Sarah Biddulph and Ms Kathryn Taylor’s review and
support. Any errors are the author’s alone.

2 Hun bub [Constitution of the Republic of Korea] (Constitution No 10, 1987) art 1 states that ‘The Republic
of Korea shall be a democratic republic’ (‘Constitution’).

3 Constitution art 103 states that ‘Judges shall rule independently according to their conscience and in
conformity with the Constitution and laws.’ The judicial independence was provided in art 77 of the original
Constitution (Constitution No 1, 1948).

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of Korea, 2019b). The Court Organisation Act,4 effective 1949, created a three-tiered,
independent judicial system for Korea.

Organisation of the Courts

Constitutional Court (헌법재판소)

The judicial power to decide constitutional issues is exclusively vested in the

Constitutional Court by art 111 of the amended 1987 Constitution.5 The Constitutional
Court was established in September 1988 and has jurisdiction over the constitutionality
of a law, impeachment, dissolution of a political party, constitutional complaints filed
directly to the Constitutional Court, and competence disputes involving State agencies
and/or local governments.6 The power to review the constitutionality of administrative
decrees, orders, rules, regulations or actions taken by administrative entities is vested
in the Supreme Court.7 When the constitutionality of a law becomes a pre-condition to
another court’s judgment, the court shall request adjudication of the Constitutional Court
by its own motion or a party’s application.8 Laws determined to be unconstitutional by
the Constitutional Court lose their force from the day that the decision is made by the
Court (Supreme Court of Korea, 2015).

All nine Justices of the Constitutional Court are formally appointed by the President
of Korea, but of these nine justices, three are elected by the National Assembly and
another three are designated by the Chief Justice of the Supreme Court of Korea.9 The
President of the Constitutional Court is appointed by the President from among the nine
Justices with the approval of the National Assembly.10 A case is reviewed by the full
bench with the attendance of seven or more Justices.11 A decision is made by a majority
vote of Justices participating in the final review, and six votes are required to declare a
law unconstitutional, to impeach, to dissolve a political party, to uphold a constitutional
complaint, or to overrule the Constitutional Court’s precedent on interpretation of the

4 Bubwon Jojikbub [The Court Organisation Act] (Act No 51, 1949) (‘Court Organisation Act, 1949’).

5 Constitution Ch 6 (‘The Constitutional Court’).

6 Constitution art 111(1).

7 Constitution art 107.

8 Hunbub Jaepansobub [The Constitutional Court Act] (Act No 4017, 1988) art 41 (‘Constitutional Court Act’).

9 Constitution arts 111(2)-(3). The role of the Supreme Court of Korea is discussed further below.

10 Constitution art 111(4).

11 Constitutional Court Act art 23(1).

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Constitution or statutes.12

The Constitutional Court of Korea is recognised as ‘arguably the most important and
influential’ constitutional court in East and Southeast Asia (Ginsburg, 2010: 145). A
recent example of the Constitutional Court’s impeachment power was the case of the
former President Park Geun-Hye in 2017. The Court found the former President abused
her authority and let a private individual deeply intervene in state affairs for private gain,
and unanimously held that the former President be removed from office. The Court held
that the former President undermined ‘the principle of representative democracy and
the rule of law’ and lacked willingness ‘to protect the Constitution’.13

The Court Hierarchy

There are seven types of courts in Korea: the Supreme Court, High Courts, District
Courts, the Patent Court, Family Courts, the Administrative Court and the Bankruptcy
Court (Supreme Court of Korea, 2015). These courts form part of a three-tiered system,
composed of District Courts, High Courts, and the Supreme Court.14 The Supreme
Court has final appellate jurisdiction over all cases. The Patent Court is positioned
at the same level as High Courts, while the Family Courts, the Administrative Court
and the Bankruptcy Court are at the same level as District Courts. District Courts and
Family Courts may establish Branch Courts, Municipal Courts and Registration Offices
if additional support is necessary.

12 Constitutional Court Act art 23(2).

13 2016헌나1 [2016Hun Na1] (2017) The Constitutional Court of Korea Report 29-1, 1.

14 Court Organisation Act, 1949 art 3(1).

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 Figure 1: Organisational Chart (Supreme Court of Korea, 2015)

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Figure 2: Court Hierarchy — The Supreme Court, High Courts and District Courts

Lower Courts

District Courts (지방법원)

In Korea, there are 18 district courts spread across the nation to provide geographical
coverage for parties. District Courts may establish branch and municipal courts if
additional support is necessary to carry out the role. There are 40 branch courts and
100 municipal courts nationwide in 2020 (Supreme Court of Korea, 2015).

District courts or their branch courts retain original jurisdiction over most civil and
criminal cases, and most cases are first heard by a District Court. The severity of
each case determines the composition of the court and the appeal process. Serious
civil cases dealing with claims over 200 million KRW (approximately AUD 232,400 at
present) or incalculable amounts and criminal cases resulting in capital punishment, life
imprisonment, or imprisonment for a minimum of one year are first heard by a panel of
three judges of a District Court, and appealed to a High Court (Supreme Court of Korea,
2015). Other cases that are considered not as serious are heard by a single judge of
a District Court, and appealed to a Court of Appeal constituted within a District Court.

Municipal courts have original jurisdiction over minor cases in which the amount
in dispute does not exceed 30 million KRW (approximately AUD 35,000) and
misdemeanour cases resulting in penal detention or a fine not exceeding 200,000 KRW
(approximately AUD 232).15

15 Court Organisation Act, 1949 art 34(1).

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Family Courts (가정법원)

The first Family Court was established in Seoul on 1 October 1963, and it was only
recently that other key cities gradually established their Family Courts: Busan in 2011,
Daegu, Daejon and Gwangju in 2012, Incheon in 2016, Ulsan in 2018 and Suwon in
2019 (Supreme Court of Korea, 2015). The Family Courts have exclusive jurisdiction
over domestic relations16 and juvenile offence cases,17 and are considered to be at an
equivalent level to District Courts.

In regional cities without a Family Court or Family Branch Court, the applicable District
Courts have jurisdictions for domestic relations and juvenile offence cases (Supreme
Court of Korea, 2015). In these regional cities, there has been concern that residents
do not have access to more specialised, high-quality judicial services (Eungsam Kim,
2016). Furthermore, there are only a few Gasa Josagwan [investigative officers], who
are experts in the field of psychology, welfare studies and education (An, 2018; Kim,
Soyoung, 2009). Upon receiving a judicial order, an investigative officer is responsible
for investigating the facts of the domestic relations cases, such as the parties’ academic
background, living conditions, health and home environment, interviewing the parties
and taking various measures to improve the situation.18

Since 1998, the Special Act for the Punishment of Domestic Violence19 provided Family
Courts with jurisdiction over domestic violence cases; and, since September 2014, the
Special Act on the Punishment of Child Abuse Crime20 gave the Courts jurisdiction over
child protection cases and protection orders for abused children. Domestic relations
cases are heard by a panel of three judges or a single judge. Juvenile offence, domestic
violence and child protection cases are heard by a single judge. Each Family Court has
a Conciliation Committee which handles conciliation proceedings for family disputes,
while investigative officers of the courts conduct investigations (Supreme Court of
Korea, 2015).

16 Domestic relations cases include nullification and revocation of legal marriage, de facto marriage,
divorce, affiliation, or adoption, determination and denial of fatherhood, and adult guardianship. See
Gasasosongbub [Family Litigation Act] (Act No 4300, 1990) art 2.

17 Juveniles means persons under 19 years of age. See Sonyunbub [Juvenile Act] (Act No 489, 1958) art 2.

18 Gasasosong Gyuchik [Domestic Procedure Rule] (Supreme Court Rules 1139, 1990) rr 8-13.

19 Gajungpokryuk Bumjeoui Chubuldunge Gwanhan Teukryebub [Act on Special Cases Concerning the
Punishment, ETC. of Crimes of Domestic Violence] (Act No 5436, 1997) (‘Special Act for the Punishment
of Domestic Violence’).

20 Adonghakdae Bumjeoui Chubuldunge Gwanhan Teukryebub [Act on Special Cases Concerning the
Punishment, ETC. of Child Abuse Crimes] (Act No 12341, 2014) (‘Special Act on the Punishment of Child
Abuse Crime’).

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The Administrative Court (행정법원)

The Administrative Court was established only in Seoul in 1998 at a level equal to
District Courts. The Administrative Court hears tax, eminent domain, labour and other
administrative cases (Supreme Court of Korea, 2015). In other regions, the respective
District Courts perform the function of the Administrative Court. Before the establishment
of the Administrative Court in 1998, administrative litigation could only be initiated after
exhausting administrative review conducted by the immediately higher administrative
agency pursuant to the Administrative Appeals Act.21 In this system, administrative
review was considered to constitute the first trial, and an appeal from that review
decision was made to the High Court.22 Requiring administrative review before bringing
a lawsuit was argued to be an infringement of people’s rights, leading to a change
in approach (Hong, 2018). Now, administrative lawsuits may be brought to the Seoul
Administrative Court or District Courts without first requiring resort to administrative
remedies (Hong, 2018).

The Bankruptcy Court (회생법원)

The Bankruptcy Court was established only in Seoul in March 2017. The Seoul
Bankruptcy Court has jurisdiction over bankruptcy cases. These cases were handled by
the Seoul Central District Court before the special court’s establishment. It is possible
that Bankruptcy Courts will gradually be established in other districts (Hong, 2018).

The Seoul Bankruptcy Court has jurisdiction over cases concerning corporate
rehabilitation, corporate bankruptcy, ordinary rehabilitation, individual bankruptcy,
cross-border insolvency and other related cases (Seoul Bankruptcy Court, 2020).
In other regions, the applicable District Courts handle insolvency cases unless a
Bankruptcy Court is established in that region in future. In exceptional cases, where
the number of creditors is 300 or more and the amount of debt is more than the amount
set by Presidential Decree (50 billion KRW or 58 million AUD at present), the Seoul
Bankruptcy Court has jurisdiction (Seoul Bankruptcy Court, 2020). The establishment
of the specialist Bankruptcy Court in Seoul reflects the capital city’s status as the centre
of finance and business for Korea and enables the legal profession and judges to build
expertise in insolvency matters.

21 Haengjug Simpanbub [Administrative Appeals Act] (Act No 3755, 1984) art 5.

22 Haengjung Sosongbub [Administrative Litigation Act] (Act No 213, 1951) art 4.

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Appellate Courts

High Courts (고등법원)

There are six High Courts in the major cities of Korea: Seoul, Busan, Daegu, Daejon,
Gwangju and Suwon. The High Courts have appellate jurisdiction over cases heard
by a trial panel of three judges from the District, Family and Bankruptcy Courts and by
the Administrative Court within their geographical jurisdiction. The appellate jurisdiction
extends to questions of fact and law from the first instance case.

The Patent Court (특허법원)

The Patent Court was established on 1 March 1998 as part of a wider judicial reform
program driven by former President Kim Young-Sam. Before the introduction of the
Patent Court, the Korean Intellectual Property Office (KIPO)’s decisions on the rights
of patent, utility model, design, and trademark, could only be appealed to the Supreme
Court directly (Korean Intellectual Property Office, 2020).

As it is positioned at the High Court level, the Patent Court has original jurisdiction to hear
appeals from the decisions made by the KIPO Tribunals on patent invalidation cases.
With the amendment of the Court Organisation Act in 2016,23 patent infringement cases
are heard by the three-judge panel of District Courts at first instance, and appealed
to the Patent Court. Appeals from the Patent Court are then heard by the Supreme
Court.24

The technical examiners at the Patent Court have expertise in various fields, including
natural science, technology and other related fields, and assist judges on the technical
matters of patent and utility model cases (Supreme Court of Korea, 2015).

The Highest Court: The Supreme Court (대법원)

As the court of last resort, the Supreme Court hears final appeals against judgments
and rulings rendered by the High Courts, the Patent Court and the appellate panels of
District Courts, Family Courts, and Bankruptcy Court in civil, criminal, administrative,
patent and domestic related cases (Supreme Court of Korea, 2015). The Supreme Court
also has exclusive jurisdiction to rule on the validity of the presidential or parliamentary
elections and review rulings rendered by the Korean Maritime Safety Tribunal. The
Supreme Court has jurisdiction to conduct final review on the constitutionality or legality
of orders, rules, regulations, and actions taken by administrative entities. The power to
review the constitutionality of legislation enacted by the National Assembly is vested in

23 Bubwon Jojikbub [Court Organisation Act] (Act No 13522, 2016) (‘Court Organisation Act, 2016’).

24 Bubwon Jojikbub [The Court Organisation Act] (Act No 9940, 2010) (‘Court Organisation Act, 2010’).

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the Constitutional Court.25

In the event a judgment in the first instance was made in violation of the law, the
Supreme Court hears Bisang Sang-go [extraordinary appeals] made by the Prosecutor
General.26 Such extraordinary appeals may include Antragsdelikt judgment made
without a complaint by the victim and sentences made beyond maximum statutory
penalties. According to a Supreme Court 2017 report, ten ‘extraordinary appeals’
were made from 2014 to 2017 and seven of them involved sentences made beyond
maximum penalties (Lim, 2017). The final appeals heard by the Supreme Court deal
with questions of law. The grounds of appeal to the Supreme Court are limited by the
Civil Procedure Act27 and the Criminal Procedure Act.28

Judicial Qualifications and Appointments

Qualifications

The Constitution states that qualifications of judges shall be set by law.29 Under the
traditional system, it was a requirement to pass the National Judicial Examination and
be trained at the Judicial Research and Training Institute (JRTI) for two years to become
a legal practitioner.30 Judges were chosen from this pool of potential practitioners. As
such, judicial appointments were made from high achievers at the JRTI and did not
require legal practice experience to become a judicial candidate (Lee, 2018). Lee (2010)
commented that the traditional system caused significant problems as unsuccessful
test-takers had spent many years preparing for the National Judicial Examination and
the majority of them experienced employment setbacks due to the low pass rate (Lee,
2010: 169, 171).

Under the new system introduced in 2009, graduation from a three-year post-graduate
law degree is required to sit the new National Bar Examination to become a legal
practitioner, and judicial appointments are made among from qualified lawyers with
legal experience in the following professions: a judge, a public prosecutor, or a lawyer;
a qualified lawyer who has engaged in legal affairs at a government agency, local
government, national or public enterprise, government-invested institution, or other

25 Constitution art 107.

26 Hyungsa Sosongbub [Criminal Procedure Act] (Act No 341, 1954) art 441 (‘Criminal Procedure Act’).

27 Minsa Sosongbub [Civil Procedure Act] (Act No 547, 1960) art 424 (‘Civil Procedure Act’).

28 Criminal Procedure Act art 383.

29 Constitution art 101(3).

30 Bubwon Jojikbub [Court Organisation Act] (Act No 9940, 2010) art 42(2) (‘Court Organisation Act, 2010’).

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juristic person; or a qualified lawyer who has held a position higher than an assistant
professor in jurisprudence at an authorised college or university.31

With the introduction of the law school system in 2009, the number of successful
candidates for the old examination was gradually lowered from 814 in 2010 to 55 in
2017 (The Ministry of Justice, 2017). Pursuant to the supplementary provisions of the
National Bar Examination Act,32 the exam was completely abolished in 31 December
2017. As such, the JRTI’s role in training potential early-career legal practitioners is
expected to be abolished in January 2021, with only one judicial trainee left to complete
the training. However, the JRTI will continue to serve various roles as an education
provider, including training judges and providing practical work experience for law
schools students (Park, Sangjun, 2020).

Appointment

The minimum legal experience required to be considered for a judicial role will gradually
increase until 2026 as follows: five years from 2018, seven years from 2022 and 10
years from 2026. The qualifications to become a Justice of the Supreme Court are: 45
years of age or above with a minimum of 20 years of legal experience in the above-
mentioned professions.

Once legal professionals meet the minimum number of years of legal experience
required, they are eligible to apply to become a judge. Vacancies are posted on
the judicial appointment website. Candidates are assessed holistically based on a
comprehensive assessment of potential, practical capacity and personality. Candidates
are first assessed on their ability to produce a written case summary; and once they
pass, they are eligible to apply for a vacant position. Successful applicants undergo
three interviews and the Supreme Court makes the final decision (Supreme Court of
Korea, 2020).

Previously, a judge at the level of High Court presiding judge was able to be appointed
as a District Court Chief Judge (Lim, 2018). The dual judicial appointment system now
requires considerable legal experience from judges appointed to the High Court; and
once appointed, the High Court judges are not transferred to District Courts and work
only in the High Courts.33 This system aims to increase the professionalism of the High
Court judges and thereby enhance the quality of appeal trials (Supreme Court of Korea,
2015). Furthermore, the promotion system within the High Court to the presiding judge
level was officially abolished, after an amendment bill was passed by the National

31 Court Organisation Act, 1949 art 42(1).

32 Byunhosa Shihumbub [National Bar Examination Act] (Act No 97467, 2009).

33 Court Organisation Act, 1949 art 42(1).

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Assembly on 5 March 2020 (Son, Hyunsoo, 2020). Some commentators suggest that
now that judges are not seeking promotion, there will be a better realisation of judicial
independence, and others that the promotion system was one of the main drivers of the
excessive judicial work ethic in Korea (Son, Hyunsoo, 2020).

The Supreme Court consists of fourteen justices including the Chief Justice.34 The
Chief Justice is appointed by the President with the National Assembly’s approval.35
Other justices of the Supreme Court are nominated by the Chief Justice from a list
created by the Committee on Recommendation of Justice Candidates,36 and appointed
by the President with the approval of the National Assembly.37 Supreme Court Justices
and the Chief Justice must be at least 45 years of age with minimum 20 years of legal
experience.38 Judges in the lower courts are appointed by the Chief Justice with the
approval of the Council of Supreme Court Justices.39

The Minister of National Court Administration, one of the Justices of the Supreme Court,
does not sit on the bench in Supreme Court trials (Supreme Court of Korea, 2015). The
Minister oversees the affairs of the court administration under the direction of the Chief
Justice and supervises the administrative staff.40

The revised Constitution of 1987 guarantees that judges will not be removed from office
for any reason other than impeachment, sentence of imprisonment or incapacity.41 The
term of office of the Chief Justice and Justices of the Supreme Court is six years and
that of judges is ten years.42 The Chief Justice can only serve a single term, while
Justices and judges can serve additional terms. The retirement age of the Chief Justice

34 Court Organisation Act, 1949 art 4(2).

35 Court Organisation Act, 1949 art 41(1).

36 The Committee on Recommendation of Justice Candidates is made up of one senior justice of the
Supreme court, one Minister of the National Court Administration, one Minister of Justice, one President of
the Korean Bar Association, one President of the Korea Law Professors Association, one President of the
Korean Association of Law Schools, one Judge from lower courts, and three revered persons of profound
learning and experience in their area of expertise. See Court Organisation Act, 1949 art 41(3).

37 Court Organisation Act, 1949 art 41(2).

38 Court Organisation Act, 1949 art 42.

39 Court Organisation Act, 1949 art 41(2).

40 Court Organisation Act, 1949 art 67(2).

41 Constitution art 106(1).

42 Court Organisation Act, 1949 art 45.

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and Justices of the Supreme Court is 70, while other judges retire at the age of 65.43

2. DISPUTE RESOLUTION
Litigation - General Overview
Civil Disputes

Court proceedings in Korea are adversarial in principle but have inquisitorial elements
as well. For instance, pursuant to art 136(1) of the Civil Procedure Act,44 the judge of
the case may seek clarification regarding the pending litigation by ‘asking the parties
questions and urging them to testify on the factual or legal matters’. Furthermore, art
136(4) stipulates that the Court ‘shall give the parties an opportunity to state their
opinions on the legal matters, which are deemed to have been evidently overlooked
by them’.45 Therefore, in principle, the presiding judge does not have an obligation
to seek clarification on matters a party is responsible for making claims against, but
the court shall actively exercise its right to clarify the matter if the party has clearly
misunderstood any legal matters or its claims are unclear, incomplete or contradictory
from the perspective of the law.46

In civil cases, parties can represent themselves in court proceedings, including court
hearings. At least one party is self-represented in more than 70% of civil cases (Kim,
Juwan, 2018). Most litigants choose to self-represent to save legal costs, however, it
is recognised that they may not be the best person to represent themselves and self-
representation delays the court process (Kim, Juwan, 2018).

Criminal Cases

In Korea, public prosecutors play a leading role in the investigation and prosecution
of offences. Pursuant to art 196 of the Criminal Procedure Act, public prosecutors are
given legal authority to direct and supervise criminal investigations carried out by the
police,47 and they can also investigate a crime themselves.48 The public prosecutors
then determine whether to indict, as the only authorised institution with that power. The

43 Court Organisation Act, 1949 art 45.

44 Civil Procedure Act art 136(1).

45 Civil Procedure Act art 136(4).

46 2001다11055 [2001Da11055] (25 January 2002) The Supreme Court of Korea; 2009다83599
[2009Da83599] (11 February 2010) The Supreme Court of Korea.

47 Criminal Procedure Act art 196 states: ‘Police officers shall investigate crimes with direction of prosecutors.’

48 Criminal Procedure Act art 195.

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prosecution is conducted by a public prosecutor who is an employee of the Ministry of
Justice.

The broad authority to indict and prosecute, if exercised fairly, gives public prosecutors
an opportunity to consider policy factors at the pre-indictment stage (Cho, 2006: 100).
However, some commentators have criticised the overwhelming power of prosecutors
throughout the criminal justice system in Korea and argue that their wide-ranging
powers may lead to abuses of power (Kim, Dongkyu, 2016).

The National Assembly had long been discussing the re-allocation of the investigative
power from the Supreme Prosecutors’ Office to the National Police Agency. An act to
adjust the balance of investigative powers between the police and prosecutors was
enforced on 1 January 2021.49 This change is further discussed later in this paper.

While capital punishment has not been carried out in Korea for more than 20 years, the
Constitutional Court ruled in 2010 that it is constitutional and remains as a sentencing
option for certain serious criminal offences.50

Alternative Dispute Resolution (ADR)

Although most disputes are resolved through civil actions heard by the Courts,
alternative dispute resolution has increased in popularity in recent years in Korea
(Hwang, 2016: 22).

Arbitration

The most used ADR format in Korea is arbitration, and Korea is known as a
jurisdiction rapidly developing its arbitration capacity (Bang et al, 2017: 27). A major
contributor to the nation’s growing focus on arbitration has been the growth of the
Korean construction and engineering industry’s activities abroad (Bang et al, 2017:
27). The Korean Arbitration Act, Joong Jae Bub,51 was amended to adopt the 2006
revisions to the UNCITRAL Model Law on International Commercial Arbitration. The
most significant change is that an arbitral tribunal can order any necessary interim
measures and they are now enforceable by Korean courts.52 The Korean Commercial
Arbitration Board (KCAB) also recently amended its International Arbitration Rules and

49 Gumchalchungbub [Prosecutors’ Office Act] (Act No 16908, 2020).

50 2008헌가23 [2008HunGa23] (25 February 2010) The Constitutional Court of Korea.

51 Joong Jae Bub [Arbitration Act] (Act No 1767, 1966).

52 Joong Jae Bub [Arbitration Act] (Act No 14176, 2016) art 18-7. Prior to the amendment in 2016, an interim
measure from an arbitral tribunal was not enforceable. This amendment adopted the UNCITRAL Model
Law art 17H.

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adopted a new code of ethics for arbitrators to meet the standard adopted by leading
institutions worldwide. One recent advancement in arbitration is the introduction of the
Arbitration Industry Promotion Act,53 which took effect on 28 August 2017. The Act aims
to invigorate arbitration as a means of resolution of domestic and international disputes,
and promote the arbitration industry in Korea to be a centre for global arbitration.54 The
Act provides government financial and planning support for the arbitration industry in
Korea.55 The Act also requires the Minister of Justice to establish and implement a plan
to promote the arbitration industry every five years.56 The Government hopes that these
recent improvements will further enhance the status of arbitration in Korea (Bang et
al, 2017: 27). According to the KCAB Annual Report, 393 cases were handled in 2018
with a total claimed amount of USD 670 million, and the number and volume of cases
continue to rise (Korean Commercial Arbitration Board, 2018: 4).

Civil Conciliation Proceedings

Courts tend to encourage parties to reach an agreement through civil conciliation

proceedings (Na, 2015). The procedure is established within the court system. Civil
Conciliation proceedings may be initiated by an application by a party to the court for
Civil Conciliation Proceeding. In some cases, even if parties applied for adjudication
proceedings, the judge may transfer the case to a Civil Conciliation Proceeding if the
judge deems that a case is an appropriate case for settlement considering the nature
of the dispute.

Civil conciliation proceedings are conducted by a judge presiding over the litigation, by
a different judge, or by a conciliation committee comprising one judge and two or more
private citizens, who are industry experts.57 The judge or a conciliation committee hears
the allegations in dispute, and either advises them to make settlement or renders a
compulsory decision to that effect. Once a settlement is reached under the conciliation
process, the settlement is recorded and has the same effect as a final judgment. If
the parties fail to reach a settlement, the judge acting as the conciliator can issue a
settlement decision for a fair and equitable resolution of the dispute or revert back to
the adjudication proceeding.

Korean courts prefer Civil Conciliation Proceedings because they aim for a compromised

53 Joong Jae Sanup Jinheunge Gwanhan Bubryul [Arbitration Industry Promotion Act] (Act No 14471, 2016)
(‘Arbitration Industry Promotion Act’).

54 Arbitration Industry Promotion Act art 1.

55 Arbitration Industry Promotion Act art 8.

56 Arbitration Industry Promotion Act art 3.

57 Minsa Jojungbub [Judicial Conciliation of Civil Disputes Act] (Act No 4202, 1990) art 7.

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solution but still allow for the rendering of a compulsory decision, and provide more
convenient, expeditious and inexpensive resolution (Na, 2015).

Citizens’ Participation in Criminal Trials

The so-called, ‘Citizens’ Participation Trial’ system, a jury system in criminal cases, has
been implemented based on the Act on Citizen Participation in Criminal Trials since it
became effective on 1 January 2008.58 According to the Supreme Court, the Citizens’
Participation Trial system was developed with reference to aspects of the jury system
of the United States of America and the citizen-judge system of Germany (Choi, 2014:
83, 89). Juries under this system reach a verdict of guilty or not guilty by their own
deliberation,59 while they are excluded from judgment on admissibility of evidence.60
The first trial with the system took place on 12 February 2008 (Bang, 2008).

The Citizens’ Participation Trial is applicable to criminal cases heard by a panel of three
judges of a District Court, which may result in capital punishment, life imprisonment, or
imprisonment for a minimum of one year.61 Some examples of these serious criminal
cases include intentional murder, death from an intentional act, robbery combined with
rape, and bodily injury or death resulting from robbery or rape. The eligible cases to
be tried by the system was extended in 2012 to include cases attracting a penalty of
over one year imprisonment to improve judicial trust and reflect the people’s sound
common sense.62 For cases where the defendants may receive the death penalty or
life imprisonment with or without prison labour, there are nine jurors.63 For other cases,
there are seven jurors.64 Where the defendants plead guilty to essential elements of
prosecuted facts, five jurors may be used.65 Jurors are citizens over the age of 20 who
are randomly selected from the electoral roll,66 who are served a summons to attend

58 Gukmineui Hyungsajaepan Chamyeoui Gwanhan Bubryul [Act on Citizen Participation in Criminal Trials]
(act no. 8495, 2007) (‘Act on Citizen Participation in Criminal Trials, 2007’).

59 Act on Citizen Participation in Criminal Trials, 2007 art 46(2).

60 Act on Citizen Participation in Criminal Trials, 2007 art 44.

61 Gukmineui Hyungsajaepan Chamyeoui Gwanhan Bubryul [Act on Citizen Participation in Criminal Trials]
(Act No 11155, 2012) art 5(1) (‘Act on Citizen Participation in Criminal Trials, 2012’).

62 See explanatory statement in ‘Act on Citizen Participation in Criminal Trials, 2012.

63 Act on Citizen Participation in Criminal Trials, 2007 art 13(1).

64 Act on Citizen Participation in Criminal Trials, 2007 art 13(1).

65 Act on Citizen Participation in Criminal Trials, 2007 art 13(1).

66 Act on Citizen Participation in Criminal Trials, 2007 art 22(1).

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proceedings for the selection of prospective jurors.67

The Government introduced the Citizens’ Participation Trials to promote democratic

legitimacy and trust in the justice system. These trials are held at the defendant’s request.
If the defendant does not wish to be tried by a Citizens’ Participation Trial, the defendant
is tried by judges only (Choi, 2014: 83, 89). The court may also decide to exclude
citizen participation from a trial on its own motion if it is considered inappropriate.68
Furthermore, the court itself may decide to exclude citizen participation if the alleged
victim of sexual violence does not wish to have such a trial, even if the defendant
applied to be tried by a panel of citizens and judges.69 Defendants applied for a trial
involving citizen participation in 2,216 criminal cases during the period from 2008 to
2012 and 848 cases (38.2%) proceeded as such. According to a Korean commentator,
the reason for the trials not proceeding with citizen participation was mostly due to the
defendants changing their minds about having a jury for their trial (Choi, 2014: 94).

The role of the Citizen Participation Trials is also limited due to the Constitution. Pursuant
to section 27(1) of the Constitution, all citizens have the right to be tried by judges, and
a Citizen Participation Trial is not a constitutional right. The judge is not required to
follow the jury’s verdict or sentencing opinion (Choi, 2014: 91),70 and the juries play
only an advisory role.71 To ensure the jury’s decision is not easily disregarded, however,
a judge shall disclose the jury decision to the defendant at the time of delivering the
final judgment,72 and explain the reasons for any discrepancy if the judgment differs.73
In cases where the jury is unable to reach a unanimous verdict of guilt or non-guilt,
the jury shall hear opinions from judges who have taken part in the trial about the
evidence before the jury deliberates again and delivers its verdict (Choi, 2014: 91).74 If
the jury again fails to reach a unanimous verdict, the verdict will be decided by a simple
majority decision (Supreme Court of Korea, 2019b). Jurors are also allowed to express
their opinions regarding sentencing. Commentators point out that the ability to make

67 Act on Citizen Participation in Criminal Trials, 2007 art 23(1).

68 A court may decide not to proceed with a citizen’s participation trials if a juror has difficulties in attending
a trial because of the juror’s safety or economic wellbeing is in danger or some of the accomplices do not
wish to be tried by one; see Act on Citizen Participation in Criminal Trials, 2007 art 9(1).

69 Act on Citizen Participation in Criminal Trials, 2007 art 9(1)-3.

70 Act on Citizen Participation in Criminal Trials, 2007 art 46.

71 Act on Citizen Participation in Criminal Trials, 2007 art 46(5).

72 Act on Citizen Participation in Criminal Trials, 2007 art 48(4).

73 Act on Citizen Participation in Criminal Trials, 2007 art 49.

74 Act on Citizen Participation in Criminal Trials, 2007 art 46.

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an independent verdict is still significant in that it reflects community values and ideals
even though the verdict is not binding (Park, Misuk, 2010: 135, 156; Chang, 2009: 401,
418).

Judges also provide instructions to the jurors as part of the Citizens’ Participation Trials
to help them understand the law. A study in 2008 by Korean Institute of Criminology
found that Korean judges provide helpful instructions on principles such as the right
to remain silent and presumption of innocence (Park et al, 2008: 44). The study also
found, however, that judges were not as clear when it came to explaining the elements
of a crime (Park et al, 2008: 260-2). The Supreme Court’s survey in 2008 also found
that 84% of jurors completely or mostly understood the trial, while 16% stated that they
understood only half or less (Supreme Court of Korea, 2008). In practice, the jury’s
verdict matched the judge’s rulings in about 93.5% of cases during the period from
2008 to 2018 (Kim, Yeji, 2019; Supreme Court Judicial Support Office, 2012: 25). It
has been suggested that the judges’ opinions and perspectives might have exerted
significant influence over jurors’ deliberations and verdicts (Choi, 2014: 97). However,
the acquittal rate was 2.5 times higher in jury trials (8.4%) compared to the acquittal rate
in cases heard solely by professional judges (3.3%) (Supreme Court Judicial Support
Office, 2012).

Even after eleven years since its introduction, Korean commentators continue to raise
questions about Citizens’ Participation Trials, including whether the system creates
any constitutional issues and whether judges’ participation in the deliberation process
should be minimised (Choi, 2014: 100).

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3. CONTEMPORARY ISSUES IN LAW AND SOCIETY IN KOREA
Act to Establish an Independent Agency Investigating Corruption (Gong-Su-
Cheo Bub)
One of the most controversial legal issues in 2019 and 2020 was the debate over
the establishment of an independent agency to probe corruption among high-ranking
officials, including the president, lawmakers, top court justices and public prosecutors.75
A bill to create the new agency (hereafter ‘CIO agency’) was passed by the National
Assembly on 30 December 2019 (Lim, Seheum, 2019), and the CIO Act was enforced
on 15 July 2020.76 The CIO agency was established on 21 January 2021, but its launch
had been opposed by the opposition party and prosecutors as discussed below.

The CIO Act empowers the CIO agency to investigate certain crimes related to the duties
of current and former high-ranking public officials, including the President, prosecutors,
judges, members of the National Assembly, and their respective families, including
bribery, embezzlement, breach of trust, and concealment of criminal proceeds, among
others.77 Under the CIO Act, other investigative agencies must immediately notify the
CIO agency when they learn of crimes that fall under the CIO agency’s scope,78 and
where deemed appropriate, the CIO agency may compel other agencies to transfer
cases to the CIO.79 The CIO agency can prosecute crimes committed, while in office,
by judges, prosecutors and police officers and their family members.80 For other crimes,
the CIO agency must send the case files to the Seoul Central District Prosecutors’
Office,81 and the prosecutor on file must promptly notify the Director General of the CIO
agency of whether to institute a prosecution for the relevant case.82

Supporters of the CIO Act have argued that it addresses concerns about the lack of

75 Gowhi Gongjikja Bumjwe Susachoe Sulchimit Unyeunge Gwanhan Bubryulan [Bill to Establish an
Independent Agency Investigating Corruption of High-Ranking Officials] (30 December 2019).

76 Gowhi Gongjikja Bumjwe Susachoe Sulchimit Unyeunge Gwanhan Bubryul [Act on the Establishment and
Operation of the Corruption Investigation Office for High-Ranking Officials] (Act No 16863, 2020) (‘CIO Act,
2020’).

77 CIO Act, 2020 art 2.

78 CIO Act, 2020 art 24(2).

79 CIO Act, 2020 art 24(3).

80 CIO Act, 2020 art 3(1)(2).

81 CIO Act, 2020 art 26(1).

82 CIO Act, 2020 art 26(2).

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authority of the police to investigate public prosecutors without first getting approval
from the prosecutors’ office itself which then controls the investigation by the police
(Kim, Minsang, 2020). Furthermore, prior to the establishment of the CIO agency,
courts did not have the legal means to punish corrupt prosecutors if the prosecution’s
office decides not to indict them (Jeong, 2010). Supporters of the CIO Act consider it
to be an initial step in the reform of the prosecution system in Korea and a measure
to address the longstanding accusations that the prosecution was too soft on itself.
However, there are also concerns that the CIO Act just creates another agency which
may abuse its own power.

For over a year, a Director General could not be appointed as the decision of the
Recommendation Committee required the support of at least six out of the seven
members under the original CIO Act.83 The Recommendation Committee is composed
of the Minister of Justice, the Minister of the National Court Administration, the
President of the Korean Bar Association, two members from President Moon’s party
and two members from the opposition People Power Party,84 and therefore a candidate
needed at least one opposition party member’s support. With the amendment made
in December 2020 that reduced the required number of votes to two thirds (i.e. five
members),85 the Recommendation Committee appointed the first Director General Jin-
wook Kim, a former judge and Kim & Chang lawyer.

The opposition party raises concerns that the amendment undermines the CIO
agency’s independence as the two members from the President Moon’s party and the
Minister of Justice, who is appointed by the President, may be unfairly biased when
voting for a Director General (Kim and Seo, 2020). To this, the Director General said
he will ‘strictly maintain political neutrality and independence’ and that he will carry out
‘fair investigations by allowing no sanctuary in probing corruption by top officials’ (Kim,
Minwoo, 2021). The CIO Act was also ruled constitutional by the Constitutional Court
on 28 January 2021 and the Court dismissed the claim that the CIO agency violated the
principle of separation of powers (Baek, In-Sung, 2021).

The Director General now faces another challenge as the agency struggles to form a
team of 25 prosecutors and 40 investigators, the maximum number allowed under the
CIO Act.86 The first Director General leads a team of 15 prosecutors (CIO Website),
and there are concerns that it will take some time for the agency to operate effectively

83 CIO Act, 2020 art 6(5).

84 CIO Act, 2020 art 6(4).

85 Gowhi Gongjikja Bumjwe Susachoe Sulchimit Unyeunge Gwanhan Bubryul [Act on the Establishment and
Operation of the Corruption Investigation Office for High-Ranking Officials] (Act No 17645, 2020) art 6(7)
(‘CIO Act, December 2020’).

86 CIO Act, 2020 arts 8(2) and 10(2).

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(Choi, 2021).

Victims’ Opinions in Criminal Trials

In Korea, the Constitution guarantees that an alleged victim of a crime may give a
statement during the related criminal proceedings in accordance with the conditions
prescribed by applicable legislation.87 Before June 2015, alleged victims could only
participate in trials as a witness pursuant to the Criminal Procedure Act.88 Due to public
demand to give alleged victims an opportunity to participate in criminal trials (Jo, 2010:
29; Park, Gwang-Min, 2010: 128), the Regulation on Criminal Procedure was amended
in 2015 to give the court discretion to allow victims to make written or oral statements
during the proceedings. Thus, after 2015, the alleged victim’s participation was not
restricted to being a witness.89 The Korean Association of Criminal Procedure Law
has raised a concern that the introduction of ‘Victim’s Statement of Opinion’ through
the amended Regulation was unconstitutional, and that in fact the Criminal Procedure
Act should have been amended instead (Jang, 2015). Korean commentators are also
concerned that the alleged victims’ personalised statements may exert emotional
influence over the jury’s determination of guilt or innocence during deliberations in
Citizens’ Participation Trials (Park, Gwang-Min, 2010: 111). Such excessive influence
is argued to be against the principle of the presumption of innocence in criminal trials.90

Despite these concerns, other commentators have suggested the ‘Victim Participation
System’ be expanded (Jung, 2018: 137), to allow victims to examine witnesses and the
accused (Shin, Soyoung, 2014). Opponents of these proposals argue that they create a
three-sided legal relationship between prosecutors, victims and defendants which would
limit the defendant’s right of cross-examination. Furthermore, the victims’ participation
may be used as quasi-evidence in Citizens’ Participation Trials even though it fails
to meet the requirements for evidence (Jang, 2015). Even though it continues to be
uncertain whether the right introduced by the Regulation is guaranteed to victims as a
legal right (Kim, Sang-Min, 2015: 147), the introduction of victim statements has had
a significant impact on Korea’s criminal law and the rights of victims and defendants
according to Korean commentators (Kim, Soyoung, 2010).

87 Constitution art 27(5).

88 Criminal Procedure Act art 294(2).

89 Hyungsa Sosong Guichik [Regulation on Criminal Procedure] (Supreme Court Regulations No 2608, 2015)
reg 134-10.

90 Constitution art 27(4) states: ‘the accused shall be presumed innocent until a judgment of guilt has been
pronounced.’ See Choi, 2014: 94.

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Judges Becoming Lawyers – Jun-gwan-ye-u
Individual performance at the Judicial Training Research Institute (‘JTRI’) after passing
the national bar examination typically determined judicial appointments before reforms
in 2013.91 Judges and public prosecutors were, therefore, appointed to their positions
at an early age and many of them retired in their 40s and 50s to work as private
lawyers.92 This tendency to retire and go into private practice has diminished since the
judicial reform in 2013 mandating years of legal experience before judicial appointment
(Jang and Lee, 2007: 108). However, there are still many judges and prosecutors who
were trained under the pre-2013 system such that the practice of early retirement still
continues.

This practice of judges or public prosecutors becoming lawyers after retirement has
resulted in Jun-gwan-ye-u.93 The term Jun-gwan-ye-u refers to the apparent preferential
treatment given to former officials by junior judges and public prosecutors. The two-
year training at the JTRI created the opportunity for trainees to develop close bonds
with each other (Jang and Lee, 2007: 54), and lawyers are often decades older than
the judges and prosecutors with whom they are dealing. The Gisu or JRTI Class also
means that the hierarchy imposed by the year of JTRI graduation is important to Korean
judges, prosecutors and lawyers. This apparent preferential treatment involved in Jun-
gwan-ye-u created public concerns about judicial independence in Korea. According
to a 2018 survey by the Supreme Court, 23.2% of 271 judges surveyed, 42.9% of 63
public prosecutors and 75.8% of 438 lawyers indicated that unfairness because of Jun-
gwan-ye-u exists (Supreme Court of Korea, 2018).94 Among those respondents who
answered that it exists, 51.6% answered they have experienced it, 39.2% answered
that they have heard of such experience. The high percentage of lawyers who indicated
that they believed Jun-gwan-ye-u exists is notable because it contradicts with the
survey’s findings about the judges’ own beliefs.

Although it is difficult to demonstrate that Jun-gwan-ye-u exists in practice, the public

perception is that it does exist and it enables some lawyers who were former judges or
prosecutors to charge higher fees based on the general perception of Jun-gwan-ye-u.
For instance, it was alleged by a journalist that some such lawyers charge 50 million
KRW (approximately AUD 58,100) to make a phone call to a prosecutor (Shin, Yeunsu,

91 See discussion in the earlier section of this paper titled, ‘Judicial Qualifications and Appointments’.

92 It was reported that in December 2003, 62% of judges were 31-40 years old and only 7% were over 51.
See Jang and Lee, 2007: 108.

93 Bribery of judges or judicial officers is not considered in this introduction paper, although the close
relationship through the JTRI may expose them to greater opportunity to receive bribes.

94 The same survey found that 22.5% of judges surveyed, 22.2% of public prosecutors and 9.4% of laywers,
were not certain if it existed.

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2018). Whilst the fees charged by former judges and prosecutors may also reflect
their legal and professional expertise developed during their judicial and prosecutorial
careers, the issue of Jun-gwan-ye-u in Korea has created concerns amongst the
general public about justice and fairness in the legal system.

The new judicial appointment qualification of legal practice experience is expected to

mitigate the negative perception of Jun-gwan-ye-u. The Korean Bar Association has
also proposed a ban on the opening of private law practices by individuals who have
served as high-ranking officials (Son, Ryung, 2019). However, the proposal has been
criticised as unlikely to be effective if there is no effort within the legal profession to
eradicate Jun-gwan-ye-u. Moreover, whilst the salaries of judges remain much lower
than those of lawyers, it is unlikely that the practice of retiring to private practice will be
completely abandoned even after the 2013 reforms.

Other Contemporary Issues

Penalty Discount for Multiple Charges

In Australia, the courts have emphasised the need to avoid suggesting that there is
‘some kind of discount for multiple offending’.95 Unlike this long-standing totality
principle approach taken by Australian courts, Korean criminal law provides for a
penalty discount for multiple offences. Pursuant to the Criminal Code,96 when multiple
crimes are adjudicated at the same time, the maximum term or amount for the most
severe crime, except life-imprisonment, ‘shall be increased by one half thereof’, but
‘shall not exceed the total’ of the maximum term or amount for each crime. For instance,
if maximum term for crime A, B and C are 10 years, 12 years and 6 years, the total
sentencing shall not exceed the total of 18 years. Reform of this system has been the
subject of debate for some time. The concept of adopting a totality principle based on
common law principles still continues (Kim, Jungjoo, 2014).

Statutory Limit to the Attorney Fees Reimbursed by the Losing Party –

Causing Frivolous Litigation

Litigation costs may significantly influence a party’s decision to litigate or settle a case.
The amount in dispute in civil litigation cases in Korea has increased in line with Korea’s
economic growth (Son, Hyunsoo, 2018). However, the rules relating to the amount
of attorney fees which form part of the litigation costs to be reimbursed by the losing
party had not been updated since 2008 and were perceived as not having kept up with
the reality of litigation. Parties were concerned about the financial burden of running a

95 R v Dennison [2011] NSWCCA 114 [62]; Hancock v The Queen [2012] NSWCCA 200 [73], citing R v
MAK [2006] NSWCCA 381 [18].

96 Hyungbub [Penal Code] (Act No 293, 1953) art 38.

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case, thus potentially dissuading them from bringing litigation or, alternatively, leading
defendants with less financial resources than the plaintiffs to settle cases which they
may have otherwise successfully defended (so-called ‘frivolous litigation’).

The rule governing the amount of attorney fees reimbursed by the losing party was
amended in 2018 to increase the amount of attorney fees which may be included in
litigation costs. In Korea, the Civil Procedure Act stipulates the losing party needs to
pay for all litigation costs incurred by both sides,97 but only to the extent permitted by
the Supreme Court Rules.98 The full recovery of attorney’s fees is not normally possible.
The Rules Regarding Attorney Fees Included in Litigation Costs determine the amount
deemed to have been paid to lawyers by a party.99 As set out in Table 1, the percentage
of attorney fees included in litigation costs are determined based on a percentage of the
amount in contention, or the amount claimed.100

Table 1: Annexed Chart 3 in accordance with Art 3 of the Attorney Fees Rules

Amount in Controversy (KRW) % of Attorney Fees

Included in Litigation Costs
(after 2018 amendment)
Up to 20 million 10%
Amount exceeding 20 million up to 50 million 8%
[2 million + (amount in controversy – 20 million) x 0.08]
Amount exceeding 50 million up to 100 million 6%
[4.4 million + (amount in controversy – 50 million) x 0.06]
Amount exceeding 100 million up to 150 million 4%
[7.4 million + (amount in controversy – 100 million) x 0.04]
Amount exceeding 150 million up to 200 million 2%
[9.4 million + (amount in controversy – 150 million) x 0.02]
Amount exceeding 200 million up to 500 million 1%
[10.4 million + (amount in controversy – 200 million) x 0.01]
Amount exceeding 500 million 0.5%
[13.4 million + (amount in controversy – 500 million) x 0.005]

97 Civil Procedure Act art 98.

98 Civil Procedure Act art 109(1).

99 Byunhosa Bosuui Sosongbiyoung Sanipe Gwanhanguichik [Supreme Court Rules Regarding Attorney
Fees Included in Litigation Costs] (Supreme Court Rule No758, 1981) (‘Attorney Fees Rules’).

100 Attorney Fees Rules art 3, annexed chart 3.

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Before the amendment in 2018, the attorney fees included in litigation costs were 3.1
million KRW (approximately AUD 3,600) for a case involving an amount in controversy of
50 million KRW (approximately AUD 58,100) and 4.8 million KRW (approximately AUD
5,600) for a case involving an amount in contention of 100 million KRW (approximately
AUD 116,000). The attorney fees reimbursed by the losing party, after the amendment
in 2018, are 4.4 million KRW (approximately AUD 5,100) for a case involving an amount
in contention of 50 million KRW (AUD 58,100) and 7.4 million KRW (approximately AUD
8,600) for a case involving an amount in contention of 100 million KRW (approximately
AUD 116,000); that is, an increase of 42% and 54% respectively.

However, the court still has discretion to decide the overall ratio of litigation costs paid by
each party,101 and thus, in practice the amount of attorney fees reimbursed by the losing
party may be substantially less than the amounts set out in the Rules. For instance, for
a case concerning 100 million KRW (approximately AUD 116,000), if it was determined
by the court that A is to pay 25% and B is to pay 75% of the litigation costs, whatever
they may be, A needs to pay 1.85 million KRW to B, while B needs to pay 5.55 million
KRW to A, and as a result, A would only get 3.7 million KRW (approximately AUD 4,300)
for attorney fees spent.

Despite the reforms to increase the amount of attorney fees included in the calculation
of litigation costs, the amounts ultimately reimbursable do not assist the litigants in the
majority of disputes in Korea due to the following reason. According to the Supreme
Court, about three quarters of the cases brought to the District Courts,102 are ‘small
claims’ not exceeding 30 million KRW (approximately AUD 35,000),103 and about 71%
are estimated to not exceed 20 million KRW (approximately AUD 23,200).104 For such
cases, the maximum attorneys’ fees reimbursable are 2.8 million KRW (approximately
AUD 3,250) and 2 million KRW (approximately AUD 2,320), respectively. As such,
there still are many cases where parties with greater resources, such as insurance
companies, bring actions against individuals and small companies for small amounts,
with the expectation that the individuals will settle rather than try to defend themselves
(Kim, Gukhun, 2018). For instance, insurance companies expecting adverse decisions
from mediation abused the current system by initiating litigation (Financial Services
Commission, 2019). Under the current law, financial dispute mediation must be stopped

101 Civil Procedure Act art 101.

102 Among 959,270 civil cases brought to the District Court in 2018, the ‘small claims’ not exceeding 30 million
KRW were 708,760; about 74%. See Supreme Court of Korea, 2019a.

103 The ‘small claims’ are re-defined in 2017 to be cases concerning the amount exceeding 30 million KRW
from 20 million KRW. See Bang, 2016; Supreme Court of Korea, 2016.

104 In 2016, when the ‘small claims’ were defined to be less than 20 million KRW, about 71% of the civil cases
were small claims. See Supreme Court of Korea, 2017 Sabup Yungam [2017 Court Statistics] (Report,
2017) 561 <https://www.scourt.go.kr/img/pub/jur_2017_Book6.pdf>.

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if a party launches a legal action before the mediation ends.105 The Financial Consumer
Protection Bill, passed on 5 March 2020, addresses this issue by allowing the court
to stop the lawsuit if the litigation and the mediation involve the same matter, and for
small claims under 20 million KRW (approximately AUD 23,200),106 preventing financial
companies from initiating litigation until the mediation procedure ends (Financial
Services Commission, 2018).

105 Gumyunguiwonhweui Seolchideunge Gwanhanbubryul [Act on the Establishment, ETC. of Financial

Services Commission] (Act No 5490, 1998) art 53(2).

106 More than 80 per cent of financial dispute mediation involve small claims. See Korea Insurance Research
Institute, 2018.

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Legislation
Adonghakdae Bumjeoui Chubuldunge Gwanhan Teukryebub [Act on Special Cases
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2014).
Bubwon Jojikbub [The Court Organisation Act] (Act No 51, 1949).
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5436, 1997).
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Officials] (30 December 2019).
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the Establishment and Operation of the Corruption Investigation Office for High-
Ranking Officials] (Act No 16863, 2020).
Gowhi Gongjikja Bumjwe Susachoe Sulchimit Unyeunge Gwanhan Bubryul [Act on
the Establishment and Operation of the Corruption Investigation Office for High-
Ranking Officials] (Act No 17645, 2020).
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in Criminal Trials] (Act No 8495, 2007).
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Haengjung Simpanbub [Administrative Appeals Act] (Act No 3755, 1984).
Haengjung Sosongbub [Administrative Litigation Act] (Act No 213, 1951).

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Hun bub [Constitution of the Republic of Korea] (Constitution No 10, 1987).
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Regulations No 2608, 2015).
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Minsa Sosongbub [Civil Procedure Act] (Act No 547, 1960).
Sonyunbub [Juvenile Act] (Act No 489, 1958).

Court Cases
2001다11055 [2001Da11055] (25 January 2002) (The Supreme Court of Korea).
2008헌가23 [2008HunGa23] (25 February 2010) (The Constitutional Court of Korea).
2009다83599 [2009Da83599] (11 February 2010) (The Supreme Court of Korea).
2016헌나1 [2016Hun Na1] (2017) (The Constitutional Court of Korea) Report 29-1, 1.
Hancock v The Queen [2012] NSWCCA 200.
R v Dennison [2011] NSWCCA 114.

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 ALC Briefing Paper Series

No. Title Author(s)

No 12 (2019) ‘A Brief Introduction to the Ms Mary Kozlovski
Indian Judicial System and
Court Hierarchy’

No 11 (2017) ‘Does the Death Penalty Professor David T.

Deter Homicide in Japan?’ Johnson

No 10 (2017) ‘The Death Penalty and Professor Pip

Its Reduction in Asia: An Nicholson
Overview’

No 9 (2017) ‘Judicial Discretion and Professor Susan

Death Penalty Reform in Trevaskes
China: Drug Transportation
and Homicide as Exemplars
of Two Reform Paths’

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PAPER
 No. Title Author(s)
No 8 (2017) ‘Understanding the Death Professor Anup
Penalty in India: The Surendranath
Challenges and Potential of
Empirical Research’

No 7 (2017) ‘The Functions of Death Dr Daniel Pascoe

Penalty Clemency
in Southeast Asia:
Comparative Lessons for
Vietnam’

No 6 (2017) ‘A Brief Introduction to the Yifan Wang, Sarah

Chinese Judicial System Biddulph and
and Court Hierarchy’ Andrew Godwin

No 5 (2015) ‘Islam, Democracy and the Professor Dr Jimly

Future of the Death Penalty’ Asshiddiqie, SH

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PAPER
 No. Title Author(s)
No 4 (2015) ‘Death Penalty and the Professor Todung
Road Ahead: A Case Study Mulya Lubis
of Indonesia’

No 3 (2015) ‘Legal Services under the Mr Andrew Godwin

China-Australia Free Trade and Mr Timothy
Agreement: Surveying the Howse
Landscape’

No 2 (2014) ‘Drug-Related Crimes Dr Nguyen Thi

Under Vietnamese Criminal Phuong Hoa
Law: Sentencing and
Clemency in Law and
Practice’

No 1 (2014) ‘Clemency in Southeast Dr Daniel Pascoe

Asian Death Penalty Cases’

The ALC Briefing Paper Series is freely available for download at

http://law.unimelb.edu.au/centres/alc/research/publications/alc-briefing-paper-series.

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Asian Law Centre
Melbourne Law School

law.unimelb.edu.au/centres/alc
[email protected]