PRE-TRIAL PROCEEDINGS

1. Introduction

The purpose of pre-trial proceedings is to clarify and narrow down the facts and the legal issues to be reviewed. It is designed to prepare an efficient and prompt trial.

2. Pre-trial Pleadings

Once a complaint is served, non-oral pleading takes place. At this stage, the parties of the litigation exchange pleadings and written evidence in docu­ments. It is a preparatory stage for a trial.

A. Written answer by the defendant

A written answer is a responsive written document in which the defendant makes admission or denials, asserts legal defenses, and raises counterclaims. This should at least contain the answer to the claim. Although the detailed answer to the claims and facts in the complaint is not required by the law, a written answer usually contains specific pleading and defenses as well as substantial evidence to support them. The defendant is required to file a writ­ten answer within 30 days from the service of the complaint (Article 256(1)).

Broadly speaking, a claim by the plaintiff may be met with three different responses by the defendant. She may dispute or accept the assertion. She may also remain silent, neither rebutting nor acknowledging the claim.

If the defendant accepts the claim or admits all the facts, the court may proceed to a judgment without conducting a trial. No express contest to the complaint leads to the same result. If the defendant remains silent by failing to submit a written answer within the above period, the court may deem that the defendant has admitted the facts in the complaint and render a judgment with­out holding a hearing. The defendant, of course, may take recourse against this judgment by way of appeal. If the defendant submits a written answer, the pleading process will be initiated.

If the defendant disputes the claim by submitting a written answer, then the pre-trial pleadings will be initiated.

B. Pleading process afterward

After the filing of a written answer, parties will continue to exchange pleading and evidence in writing under the direction of a presiding judge, without appearing in court. Ordinarily, one or two exchanges of briefs are deemed sufficient. The presiding judge retains discretion on whether or not the case requires further pleadings. If so, she will allow the parties to submit further documents. If she thinks this will be enough to make the case ready, she will then summon parties to hold a pre-trial conference.

Before the new case management model was introduced in the wake of the 2002 amendment, this process was nearly neglected in practice. The court directly moved on to the hearing stage immediately after the complaint was filed. In this setting, hearings were rather sporadic than centralized. A series of isolated hearings took place, and the parties had to keep appearing in the court repeatedly. This incurred grave loss of time and efficiency in proceedings. Thereby, a pleading process was introduced to replace repeated hearings in order to eliminate inefficiency. Instead, hearings are to be held once or twice in principle, during which concentrated oral arguments and witness examina­tions take place.

In order to expedite the proceedings, the presiding judge usually sets a time-limit for each pleading. Basically, parties are supposed to present all the arguments and written evidence in support of their claims or defenses at this stage. Failure to abide by the time-limit can lead to a sanction of being barred from submitting them in the trial stage.

One of the different features of this process in comparison with the U.S. civil procedure law is the absence of discovery. There is no general obligation of the parties to submit documents contrary to their interests. Instead, Korean law possesses an alternative procedure: an order by the court to submit a docu­ment. The court, upon the motion of the party, may order the holder of a docu­ment to submit it under certain circumstances (Article 344). The holder of a document shall not refuse the order. In cases of refusal by the party of the liti­gation (Article 349), the court may admit the claims of the other party in the document to be true. In cases of refusal by the third party, she will be sanc­tioned by fine (Articles 351, 318, 311(1)).

3. Pre-trial Conference

A pre-trial conference is the last step in the pre-trial proceedings. After a thor­ough pleading process when issues have been made clear and substantial document evidence has been submitted, the presiding judge, or one of the associate judges commissioned by the presiding judge, then holds a pre-trial conference (Article 282(1)). During the conference, the judge discusses the issues of the case with the parties and their counsel. If necessary, they consider the simplification and sharpening of the issues.

During the conference, the judge and the parties also develop a plan for the upcoming procedures. For instance, setting the date of hearings and the limi­tation of the number of witnesses may be discussed and planned.

The possibility of reaching a settlement can also be deliberated upon. In practice, the presiding judge frequently makes an attempt to conciliate the case at this stage. Most of the times, this is the stage when issues have been made clear both to the court and the parties, misunderstanding has been mitigated, and the parties have turned less combative. A separate settlement conference may be planned and conducted. Against this backdrop, a considerable number of cases are settled in the form of compromise or conciliation.

4. Balancing the Role of the Judge and the Parties

Before concluding the explanation on pre-trial proceedings, it is worthwhile to mention the issue of balancing the role of the judge and that of the parties.

Basically, parties are the main players in the field of civil litigation. They initiate the lawsuit, determine the claim and present facts. They are in charge of making allegations and presenting evidence to their advantage. They reserve the right to drop the suit or accept the claim, which will consequently lead to the termination of the litigation. This remains true in pre-trial proceedings. It is parties who build up this process.

However, it is truly the presiding judge who controls the effectiveness of the pre-trial proceedings. The presiding judge is the conductor of the process. She reserves the right to oversee the preparation of the case. She has the power to set periods of time for performance of procedural acts and to order any necessary procedural measures.

A controversial point is the extent to which the presiding judge can render guidance for the pleading. In connection with the role of the judge in civil procedure, this has been a much debated issue. The KCPA Article 136 provides that the presiding judge may ask the parties questions, and urge them to prove in order to clarify the legal relations on factual or legal matters.

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