TRIAL PROCEEDINGS
1. Making Oral Arguments in a Hearing
After the pre-trial conference is over, the presiding judge designates the date for a trial. The trial proceedings are conducted at oral hearings.
In principle, the hearing is held in public unless otherwise designated by the presiding judge.There is no jury system for a civil procedure in Korea. Accordingly, every trial is conducted in the form of a bench trial. Therefore, jury-related issues such as jury selection, instruction, or judgment notwithstanding the verdict (JNOV), are not discussed with regard to the KCPA.
With the intensification of the pre-trial proceedings, the significance of the trial in terms of making oral arguments has diminished in practice. The arguÂments should have been made in a timely manner and issues should have been clarified in the pre-trial phase. However, these are meant to be only preparaÂtory works for the trial. Therefore, the arguments that have been made during the pre-trial conference should be stated again in front of the court, though in a simple manner, on the first hearing date.
The parties state the outcome of the pre-trial pleadings on the first hearing date. The court should strive to close the whole pleading immediately after going through the first hearing date, unless the nature of the case precludes this. To make this possible, Korean courts ordinarily try to complete all the examiÂnations of documentary evidence during pre-trial proceedings, carry out the examination of witnesses on the first hearing date, and then end the hearing.
2. Evidence
A. Overview
The facts alleged by the parties need to be proved by evidence. For this reason, evidence is collected and submitted by the parties. However, the facts admitÂted by the opposing party do not require any evidence. The admission binds both the court and the parties (Article 288).
Furthermore, the evident facts or laws themselves do not require any attestation. The court is not allowed to consider evidence that has not been presented by either of the parties. Even in an extreme case where the judge clearly knows the existence of the evidence based on her personal knowledge, she has no choice but to judge otherwise if that has not been presented by the party in the proceedings.Application to present evidence may be made either orally or in writing. In doing so, the applying party should identify the facts to be proved by evidence. The court has much discretion with respect to the admission of evidence. Consequently, the court may reject the application for examination of evidence, unless it is the sole evidence for the party’s alleged facts (Article 290). Likewise, assessing the relevance and the materiality of the evidence is fully at the discretion of the court. In practice, the admissibility of evidence is very loose and lenient. Virtually any type of evidence can be presented at trial, including hearsay evidence.
According to the KCPA, there are six types of evidence: examination of witnesses, examination of parties, expert testimony, documentary evidence, inspection, and other evidence (drawings, photographs, recording tapes, video tapes, magnetic discs for computers and other articles created to put the inforÂmation therein). There is no clear-cut rule concerning the probative values of each type of evidence. In practice, there is a general tendency of placing higher trust on the documentary evidence than testimony by a witness. According to the Supreme Court decision,[25] the document by which the juristic act has been performed presumes the existence and the content of that juristic act. Therefore, these documents, such as written contracts or agreements, are usually considered the most powerful evidentiary sources.
Submitting documentary evidence and examining it are conducted during the pre-trial stage, whereas examination of witnesses is conducted during the trial stage.
B. Examination of witnesses
Witness testimony is a very common and significant form of proof. It becomes particularly decisive when there is little relevant documentary evidence. This happens quite often in Korea since a lot of small transactions, especially between individuals, take place orally without producing any documents.
Anyone capable is eligible to be examined as a witness (Article 303). However, the litigating parties themselves are not qualified as witnesses. Upon the motion of the parties, the court decides whether or not to accept an appliÂcation. The motioning party should submit copies of the interrogatories to be served on the opposing party so that she can prepare for the cross-examination in advance.
Once summoned, the witness has a duty to appear and to give testimony under oath (Article 319). If the summoned witness fails to appear on the date of examination without any proper reason, the court imposes a fine on the summoned witness, and orders her to bear any increased litigation costs incurred due to her non-appearance (Article 311(1)). If the witness fails again to appear without any proper reason after receiving a judgment of a fine, the court punishes the witness by a detention for not more than seven days (Article 311(2)).
24
A witness may refuse to testify or to take oath if she has justifiable reasons (Article 314, 315, 324). For instance, a witness may withdraw from testifying if she has been entrusted with confidential information by virtue of her profesÂsion or position, such as a lawyer, patent attorney, notary public, certified public accountant, medical experts, pharmacists, or a holder of a religious post, may refuse to testify (Article 315(1)).
A witness is examined first by the party who requested her to appear. This is called a direct examination. The opposing party cross-examines the witness after the direct examination is completed (Article 327(1)). Direct re-examinaÂtion may be conducted upon the completion of the cross-examination.
Further examination is allowed only with the permission of the presiding judge (RCP Article 93(3), Article 92(4), (5)). The presiding judge may question the witness after examinations by both parties. However, if necessary, the presidÂing judge may interpose questions during the direct or cross-examination (Article 327(3)). Leading questions are only permissible on cross-examination (RCPArticle 91(2), Article 92(2)).Testimonies by witnesses are recorded in documents. In the case of false testimony, the witness commits perjury.
3. Closing a Hearing
The presiding judge has very broad discretion in conducting proceedings. When all the necessary pleadings and evidence have been made and heard and the case is ripe for the final adjudication, the court closes the oral proceedings and sets a date for the rendering of the judgment. In practice, decisions are delivered after two or three weeks from the closing of the proceedings unless the nature of the case requires a longer interval.
VI.