COMMENCING THE LITIGATION

Having explained fundamental elements that are necessary in understanding civil procedure law, we now get into the illustration of each step of litigation. Filing litigation is the initial stage.

1. Complaint

A. The first step in litigation - filing a complaint

A civil action begins when the plaintiff files a complaint with the court (Article 248). A Complaint is a written document in which the plaintiff alleges juris­diction, sets forth facts that entitle the plaintiff to relief from the defendant, and demands relief. Filing a complaint is absolutely essential for litigation to start and proceed, since a court is merely a passive adjudicator of disputes and neither initiates nor encourages litigation. Moreover, the court is not allowed to render any judgment on matters which have not been claimed by the plain­tiff. In this sense, the role of the parties is highly significant in the proceed­ings.

In principle, a complaint should be in writing. Filing a lawsuit without submitting a written form is allowed only in small-claim cases. Even in this exceptional case, a court clerk must write down what has been filed orally, and keep it in the form of a protocol. This may therefore be viewed as an altered form of a written complaint.

B. Things to be stated in a complaint

The following elements are to be stated in a complaint: the parties, the legal representative or counsel if any, the relief sought for which the action is insti­tuted and cause of actions (Article 249).

The relief sought is the ultimate purpose of the litigation.

The cause of action refers to the fact patterns that provide the legal basis of the claim and shows that the pleader is entitled to relief. These facts should be concrete enough to contain a sufficiently definite motion. Although other fact patterns that are not necessary to specify the claim need not be included in the complaint, it is a widespread custom to include these facts if the plaintiff deems it necessary to make the claim clearer. The cause of action specified by the plaintiff cannot be changed by the court. In this sense, the plaintiff fully enjoys the right to constitute the claim without the intervention of the court. However, this may put the plaintiff in a more disadvantageous position, in particular when the plaintiff has neither sufficient amount of legal knowledge nor adequate legal support in forming legal claims for her case.

Evidence need not be included or attached in the complaint. However, plaintiffs tend to attach substantial evidence, such as a copy of the written contract in a contract-related case. This is also strongly recommended by the court, for this will facilitate the court and the defendant to clarify the claim as well as to be provided with sufficient information regarding the case.

C. Three types of actions

With regard to the relief sought, there are three categories of actions.

The first category is the most common type; a performance claim. This is a claim to request the court to order the defendant to do something or to refrain from doing something. Some examples: the plaintiff asks for performance of a contractual obligation or claims damages for the breach of contract.

The second category is a declaratory claim. This is to attain a judicial decla­ration of the existence or non-existence of the disputed legal relationship. Some examples: the plaintiff asks for a judicial declaration of her ownership over land. A liability insurance company demands for a declaration for the non-existence of its duty to pay insurance money to an alleged accident victim. A claim for a declaratory judgment is open to all persons who have a legiti­mate interest in the claim. However, it should be noted that this claim is subsidiary to performance claims. Since claims for declaratory judgment are not subject to enforcement, they are only permitted when the plaintiff has a special legitimate interest in obtaining the declaratory judgment. Therefore, this claim is not allowed if the plaintiff can file a performance claim. Thus, the plaintiff should file for a payment of debt against the defendant, instead of filing for a declaratory judgment on the existence of her credit.

The third and the last category is a formation claim. This is to create or modify a legal relationship by the order of the court. Considering that a legal relationship is primarily established by parties involved without intervention of the court, this claim is exceptional. A formation claim cannot be filed unless there are statutory provisions that specifically provide a legal ground for the claim. Typical examples include revocation of the resolution by a general shareholders’ meeting, or demanding an increase or reduction of rent in a lease contract.

D. Subsequent procedure

When a complaint fails to state any of the matters required to be stated, or if stamps (as required under the provisions of Acts) are not affixed to a complaint, the presiding judge shall order the plaintiff to correct it within a designated period (Article 254(1)).

If a complaint has met the necessary requirements, the court serves the defendant with a duplicate (Article 255(1)). It must be served on the defendant in time for the person to take actions in defense. The RCPArticle 64(1) obliges the court to serve the complaint �immediately’ after it has been filed. Along with the copy of the complaint, other relevant documents such as the instruc­tion to the civil procedure and the order for the submission of the written answer are enclosed and served together. The service is usually performed by registered mail. However, a designated court official or a marshal, upon the request of the court or the plaintiff, can serve these documents. If the service turns out unsuccessful due to the incorrectness of the address specified in the complaint, the presiding judge orders the plaintiff to correct it within a desig­nated period. Failure to comply with this order might result in the dismissal of the complaint. If it becomes obvious that specifying the correct address is impossible without negligence of the plaintiff, the presiding judge orders a public notice as an alternative way of service (Article 194). This is done in the way of posting the above documents on the designated court’s bulletin board or in other ways as prescribed by the Supreme Court Regulations (Article 195).

The plaintiff may dismiss the case voluntarily after the complaint has been filed. However, the plaintiff needs to get approval from the defendant to do so if dismissal is to take place after the defendant has made her plead­ing on the merit (Article 266(2)). If the defendant does not make objection to the dismissal by the plaintiff within two weeks, she is deemed to have consented to the dismissal (Article 266(6)). Voluntary dismissal is without prejudice unless it has been made after the rendition of judgment (Article 267).

2. Parties

A. Capacity for being a party

Anyone who files a written complaint with the court is called a plaintiff. The opposing party specified in the complaint is a defendant. In this sense, parties are specified by virtue of a complaint. However, it is one thing to specify a party, and another thing to determine whether or not that party has the capac­ity for being a party. In principle, the capacity for being a party is determined by the Civil Act and other relevant Acts. According to the Civil Act of Korea, a natural person and a juristic person hold this capacity. Hence, these two types of persons are eligible to become a party in the civil proceedings. Yet, the KCPA Article 52 adds another type to this list. An association or a foun­dation other than a juristic person may become a party to a lawsuit, as long as it has essential elements of a juristic person. Some core required elements are as follows: the existence of a decision-making body, a representative organ performing the acts by which the rights and duties of an organization are created, exercised, and fulfilled, and assets separate from individual prop­erty of its members. Generally, a partnership fails to meet the above require­ments, thereby requiring individual partners to become parties to the litigation.

B. Plurality of a party

There may be multiple parties in a single lawsuit. Therefore, in a case where the rights or liabilities forming the object of a lawsuit are common to many persons, or are generated by the same factual or legal causes, these persons may join in the lawsuit as co-litigants (Article 65). The same shall also apply in cases where the rights or liabilities forming the object of a lawsuit are of the same sort, or are generated by the same sort of factual or legal causes (Article 65).

The KCPA also allows a third party to join existing proceedings. However, the joining party should possess sufficient connection between her claim and the existing proceedings.

C. Legal representative and counsel of a party

Minors, quasi-incompetent persons, or incompetent persons, as stipulated in the Civil Act, do not possess litigation capacity. Consequently, they may conduct procedural acts only through legal representatives. Who gets to be a legal representative is determined by the Civil Act or other relevant laws.

Parties may have an attorney-at-law as her legal counsel. However, repre­sentation by a lawyer is not mandatory in proceedings. In principle, only lawyers admitted to the Korean bar are qualified to legally represent in civil procedure. Thus, foreign lawyers are not permitted to act as counsel for a liti­gating party. Parties retain the power to discharge their lawyers at any time. There are some exceptions in the cases that are reviewed by a single judge. In the cases where the amount in dispute falls short of a specific amount, the court may permit certain persons other than lawyers to represent the party.^[18]

3. Jurisdiction

A lawsuit should be filed with the court that has competent jurisdiction. Jurisdiction is the power or authority of a court to determine the merits of a dispute and to grant relief.

The District Courts, including their branch courts, hold original jurisdiction over civil cases. A single judge presides over a case unless the amount in dispute exceeds 50 million Korean won.^[19] A three-judge panel will take cases in which the amount exceeds the above limit and cases which have been trans­ferred from a single judge due to its difficulties and complexities. There are some special subject matters that are dealt with by a single judge even when the amount in dispute exceeds the limit mentioned above. These matters are enumerated in �The Regulation on the Subject Matter Jurisdiction in Civil and Family Litigations’, one of the Supreme Court regulations.

Having explained the basic subject matter jurisdiction in Korea, I proceed to give a general illustration on how territorial jurisdiction is established under the KCPA.

A. General and special venues

There are general venues and special venues by which territorial jurisdiction is decided.

As for a general venue, the court at the place of domicile of the defendant is competent to decide all claims (Article 2).^[20] In case the defendant has no domicile or her domicile is unknown, the general forum will be determined by the place of residence. When even the residence is unfixed or unknown, the general forum will be decided pursuant to the last domicile.

On the other hand, the KCPA provides numerous special venues in addi­tion. Important among these special venues are: a workplace (Article 7); the place of performance of an obligation (Article 8); the location of the property (Article 10); the place where a tort was committed (Article 18); the place of registration (Article 21).

When there are plural venues establishing the jurisdiction, the plaintiff can bring a suit in one of those venues. In cases where several claims are joined in a single lawsuit, it may be brought to the court having jurisdiction over one of those claims (Article 25(1)).

B. Establishing jurisdiction by agreement and pleading

An agreement between parties serves as another basis for establishing juris­diction. If the parties have agreed in writing as to the competent court of first instance with respect to a lawsuit based on specific legal relationship, the spec­ified court recognizes the legal effect of such an agreement unless the case is subject to the exclusive jurisdiction of another court.

Pleading can be a factor creating new jurisdiction under the KCPA. If a defendant pleads in the hearing or makes statements during the pre-trial proceedings as to the merits of a case in the court of first instance without filing any jurisdictional defense, the defendant is deemed to have consented to the jurisdiction of the said court (Article 30). Therefore, the said court shall have the jurisdiction and the defendant who has failed to raise a timely defense shall be estopped from challenging it.

C. Determining international jurisdiction

The KCPA provides no explicit provision for international jurisdiction. However, courts and commentators have construed provisions of territorial jurisdiction to be the basis for establishing international jurisdiction. The premise for this is that both domestic and international jurisdictions share the same spirit of establishing a fair and efficient forum for a dispute resolution. Therefore, they believed that the KCPAprovisions, in the absence of applicable provisions, can at least provide the basis for international jurisdiction by way of analogy. Yet, Korean courts also acknowledge that to merely mechanically apply domestic provisions to interna­tional circumstances without considering some notable differences between these two would be inadequate. For this reason, the Supreme Court of Korea added �legal reasoning’ as another basis for determining international jurisdiction.^[21] To sum it up, Korean courts, in determining international jurisdiction, will first look at the territorial jurisdiction clauses in the KCPA and attempt to apply or modify, if necessary, the domestic doctrines in light of legal reasoning.

20

Recently, the Korean Private International Law has newly introduced the jurisdiction clause, stating that a Korean court shall have the international jurisdiction when a party or a case in dispute has substantial relationship with Korea.^[22] It also states that the court is to comply with reasonable principles that are in accordance with the idea of allocation of international jurisdiction, when deciding on the substantiality.^[23] Jurisdiction clauses in domestic law and the unique nature of international jurisdiction should be considered in deter­mining international jurisdiction, according to the next clause.^[24]

D. Transfer due to lack of jurisdiction or by discretion

If the court finds that it lacks jurisdiction, it shall transfer the case by its ruling to the competent court (Article 34(1)). Even when the case falls under its juris­diction, the court may transfer the case to another competent court in order to avoid any significant damage or delay (Article 35).

IV.