OTHER ISSUES
1. Settlement during the Proceedings
Because of an increase in the number of cases being litigated, Korean courts are actively encouraging non-litigation means for disposing cases.
In this regard, court-annexed settlement programs are frequently used.[30] A case can be settled by way of compromise before the judge (Article 220), or it can be settled by way of conciliation proceeding. At every stage, the judge may refer the case to a conciliation proceeding if it is deemed appropriate.[31]The KCPAArticle 225, a provision introduced in 2002, plays a significant role in the realm of court-led alternative dispute resolution. This provides the court with the authority to render a ruling recommending parties to settle the case. The parties may object to this ruling in writing within two weeks from the date of service, which in consequence will bring the parties back to the litiÂgation. In the absence of objection within a given period, the ruling takes the same effect as a final and conclusive decision, and enforcement ensues.
There may be some different opinions as to the appropriateness of the court aggressively stepping in for the purpose of settlement. It might be proper to suggest a settlement once the issues of the case are revealed. However, there is a possibility of parties being coerced into the settlement, especially when the court suggesting the settlement is the same court adjudicating the case. This is sometimes the case in Korea. Basically, the conciliating judge or conciliating committee will be in charge of conciliation. However, it is still possible for the adjudicating court to conciliate the case itself. In reality, this is what mostly happens. When the court fails to lead parties to a settlement, the very court which was involved in the settlement process will be making a final decision. The party who has not accepted the suggestion of the court to settle the case may fear being disadvantaged by the court in the proceedings to come and in the judgment of the case.
Although Korean courts are striving to tread a careÂful line between coercing the parties and helping them to reach the settlement, some reforms in the court-driven settlement system may be required.2. Enforcement
Enforcement of civil judgments is governed by the Civil Execution Act, which became effective as of 1 July 2002. Previously, this Act was only a part of the KCPA. A final judgment is eligible for enforcement. Also provisional enforceÂment orders by the court, or foreign judgments recognized by the Korean court are eligible for enforcement.
It is only a performance claim that is qualified for enforcement. A monetary claim is enforced by seizing and selling the debtor’s nonexempt property in a public auction. Other types of claim are enforced differently. A claim for delivÂery of movables or immovables is executed by a court-appointed marshal. A claim for performance other than giving something is executed by either substitutional execution,[32] when it can be performed by a third party, or indiÂrect compulsory performance,[33] when it should be performed by a debtor herself.
3. Recognition and Enforcement of Foreign Judgments
Judgments rendered by a foreign court should be recognized in order to be enforceable in Korea.[34] The following requirements are to be met for the recognition (Article 217).
In the first place, a foreign judgment needs to be final and conclusive in order to be recognized and enforced by Korean courts. It is final when there is no possibility of further appeal within civil procedure. Whether or not this requirement of finality has been met is determined on the basis of the foreign law by which the decision was rendered.
Secondly, the international jurisdiction of the foreign court is required. This is determined in light of the Acts and subordinate statutes of Korea, or of the treaties. According to the spirit of the Article 2 of the Private International Act, the substantial relationship between the case and the forum is the major stanÂdard by which an international jurisdiction is measured.
In considering the substantiality of the relationship, the court should consider not only private interests such as fairness, convenience, and predictability of the litigating parties, but also public interests such as adequacy, swiftness, efficiency of the trial as well as the efficacy of the judgment.[35]Thirdly, lawful service of a summons or a document is needed. A defeated party should have received, pursuant to a lawful method, a service of a summons or a document equivalent thereto, and a notice of date or an order, with a time leeway sufficient to defend himself (excluding the case pursuant to a service by public notice or similar service). If he responded to the lawsuit even without this having been served, this requirement is deemed to have been satisfied.
Fourthly, the foreign judgment should not violate good morals and other social orders. This is to prevent a foreign judgment from being recognized and enforced in contravention of the public policy in Korea. What constitutes violation of good morals and other social orders is left to the discretion of the competent court. There was an interesting lower court decision that dealt with the acceptability of the punitive damages award by a U.S. court.[36] According to this decision, the court stated that the punitive damage award with its funcÂtion of criminal sanction might violate good moral and social orders in Korea where only compensatory damage for torts is allowed. Subsequently, the court recognized only half the amount of the award.
Finally, there is a requirement of reciprocity. The foreign judgment will be recognized and enforced when the Korean judgments are recognized and enforced under the same or more lenient conditions in the concerned nation. However, this reciprocity requirement is construed rather generously so that the foreign judgment will be recognized by a Korean court as long as requireÂments are substantially similar on the whole.[37]
VIII.