JUDGMENT AND APPEAL

1. Judgment

A. Deliberation

After closing the trial, the court deliberates on the case. If the case was tried by a panel of three judges, each of them has the independent status as to the deliberation and the vote.

It is for the court to apply the law to the facts which come before it. With regard to this, whether or not the court is bound by the cause of action presented by the party has been fiercely debated among civil procedure law scholars. There can be multiple legal grounds on which claims can be based, for a single dispute. Let us assume that a taxi driver got into a traffic accident due to negligent driving, causing a severe injury to the passenger. The victim can claim damages on either ground: breach of contract^[26] or torts.^[27] It is for the plaintiff to decide on which grounds her claim shall be based. Once the legal ground is fixed and submitted by the party, the court is bound to keep to that ground. In a case mentioned above, the court is not allowed to decide on a torts claim when the plaintiff has made her allegation based on the breach of contract.

Yet, it is still controversial among scholars whether or not this theory should be upheld. Frequently, parties are not capable of legal classification or categorization of facts particularly when they are devoid of legal advice from legal experts. It is also deemed inefficient and time-consuming to allow other lawsuits on the same incident to take place just because it is based on another cause of action. The Supreme Court decisions are strongly based on a tradi­tional approach. However, there are some criticisms against this from civil procedure scholars.

B. Decision

The KCPA recommends the court to render a decision within five months after the institution of the lawsuit (Article 199), and within two weeks (or four weeks if the case is sophisticated) after the hearing has been closed (Article 207(1)). Although such time-limits are deemed to have only recommendatory effects, a considerable number of civil cases are handled within the designated period. The judgment must be rendered by the judge(s) present at the final hearing of the case.

The following elements should be included in the written judgment: parties and their legal representatives, conclusion, relief sought (and that of the appeal in appeals cases), cause of action, date on which the pleadings have been concluded, and the court (Article 208(1)). Yet, it does not specifically provide the detailed form of the judgment, in particular with regard to the main part where the court gives reasons for the conclusion. Consequently, the form of the written judgment may differ from case to case in details. However, judg­ments in Korea usually take a typical form in practice. First, the court illus­trates the facts of the case, and then proceeds to summarize the parties’ claims and their legal basis. Presenting issues out of this, the court then gives reasons for the conclusion. Decisions in Korea are generally shorter in length compared to those by the federal courts in the U.S.

Once the judgment is rendered, the court cannot retract or modify it. Only in case of mere miscalculation, mistype or other similar fallacies are the courts allowed to make corrections.

C. Bearing litigation costs

A judgment should also contain a decision as to who bears the costs of the proceedings. Litigation costs include court fees, costs of document delivery, costs incurred in the process of evidence examination such as expense for witnesses, and attorney’s fees. The attorney’s fees are compensated within the limit prescribed by the Supreme Court Regulations. Due to this constraint, attorney’s fees are not always fully recovered.

In principle, litigation costs are borne by the losing party (Article 98). As an exception to the principle, the court may impose the whole or part of costs on the prevailing party who conducted unnecessary acts for her own advantage or who caused delay in the litigation (Articles 99, 100). In cases of partial defeat, the court determines the parties to bear costs and their percentages (Article 101). Mostly, costs are borne by both parties with the ratio determined by the court. However, the court may have one party bear all costs depending on circumstances.

The judgment regarding litigation costs does not specify the amount of the costs. Therefore, the party who is eligible to retrieve costs from the other party should file another application with the court. Then, the court determines the specific amount of the costs. This decision containing the specific amount becomes the ground for the enforcement on the litigation costs.

2. Appeal and Final Appeal

When a decision is rendered, a losing party is entitled to appeal to the court of next instance for reversal of the judgment. The appellant must have a legiti­mate interest in the appeal. To put it in another way, the appellant should have been aggrieved by the judgment. An appeal must be lodged within 14 days from the date of service of thejudgment on the party in question (Article 396(1)). Cross appeals may also be lodged by the respondent to an appeal or by any other party (Article 403). If the losing party does not appeal against the judgment within the designated time, it becomes final and conclusive.

Appellate proceedings in Korea are not substantially different from the original proceedings of the first instance in that parties are allowed to make arguments and submit evidence. New allegations or submissions are permitted so long as it does not infringe upon a time-bar limitation. Therefore, the appel­late proceedings have the character of a continuation of the previous proceed­ings.

When the appeal is found correct, the appellate court vacates the judgment and renders its own decision. The appellate court is not allowed to grant more than the party has requested. On the other hand, when the appeals are found groundless, the court dismisses the appeal.

The judgment of the appellate court may be appealed again to the Supreme Court of Korea. No separate decision by the Supreme Court to hear an appeal from a lower court, such as a writ of certiorari in the U.S. Supreme Court, is required. For that reason, the number of final appeals to the Supreme Court is surprisingly high.^[28] Although the cause for appeal is limited to the matter of law, the Supreme Court of Korea has been lenient enough to accept the appeal based on factual issues. This has been possible under the unique doctrine of �the violation of the rule regarding taking of evidence’, justifying the dispute of the facts at the highest level in the form of the matter of law.

The Supreme Court either dismisses the final appeal when it is groundless, or remands the case when it is found reasonable. The final decision of the Supreme Court has a binding effect on lower courts with respect to the specific case in issue. Unlike common law jurisdictions, the decision does not have a binding force on later cases of similar nature. However, Supreme Court deci­sions do seem to influence lower courts to a great extent in subsequent cases. In this regard, the Supreme Court decisions may be said to function as power­ful precedents with de facto binding force.

3. The Effect of the Final and Conclusive Decision

A. Finalization

When the decision is rendered and no appeal is lodged within a designated period, the decision becomes final and absolute. The decision is also made final when the appeal is withdrawn. As mentioned above, the decision by the Supreme Court, the court of last resort, is also final unless the Supreme Court remands the case to the lower court. To sum it up, the decision becomes final when it is no longer subject to ordinary forms of review.

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B. The effect of final judgment: resjudicata

When the judgment is made final, it has an effect called res judicata. This refers to the binding effect that a final adjudication on the merits of a claim has in preventing the same parties from litigating the same claim again and binds the court to the same conclusion. This effect operates with total disregard for what the truth is. Without this effect, constant relitigations would take place and overburden the court. Persons will not be able to rely on the original deci­sion and plan for the future. Thus, res judicata is a tool with which legal stabil­ity is achieved.

There are three interesting effects of the principle. The first aspect concerns the scope of the claim (Article 216). Res judicata is only binding on the claim of the case, not the facts or grounds supporting that claim. The second aspect concerns the parties (Article 218). This ruling is binding on the parties, succes­sors of the parties subsequent to a closure of pleadings, or persons possessing the object of claims on their behalf. Thus, persons outside the above category are free to bring the same lawsuit without contradicting this effect. The third and final effect concerns timing. There can be no relitigation after the final hearing date even though there may be some important issues or evidence that were never introduced or considered in the first action.

C. Re-trial

As mentioned above, a final judgment is not subject to any modification or cancellation. The only way to make this possible is through a motion for a re­trial. However, in order to maintain public peace and legal certainty, this motion is allowed only under very strict conditions. These conditions are enumerated in the KCPAArticle 451, including: an ineligible judge participat­ing in the judgment; a defect in granting representative power to legal repre­sentative; forgery or alteration of a document or any other article used as evidence for the judgment; false statement by a witness, an expert witness or an interpreter; or a contradiction to the final and conclusive judgment which has been previously declared.

VII.