Dec 28, 2015

Execution of Foreign Judgments in Korea: Collection Basics in Korea

Question:  I have a final judgment against a Korean individual from a New York state court.  How can I enforce this judgment in Korea against this Korean individual?

Korean Curts
Korean Central District Court.  
Answer:
A foreign judgment, in Korea, can be executed based on meeting the requirements of the Civil Execution Act of Korea and Civil Procedure Act of Korea.  The relevant provision are Article 26 and Article 27 of the Korean Civil Execution Act and Article 217 of the Korean Civil Act.  If you interested in enforcing a Korean judgment abroad, please view our sister blog at: Enforcing a Foreign Judgment in a New York Courts.

The process of recognition and enforcement of a foreign judgment, often, is complicated, because of the need for translations of foreign judgments, the different style of foreign judgments and the, often, lack of familiarity of these foreign enforcement actions by Korean courts.

The action must be filed in a Korean court to be executed in Korea.  No Korean administrative agency handles these actions in Korea.

Requirements for Enforcement of a Foreign Judgment in Korea

1.  "Judgment" Must be Rendered by a Foreign Court
The Supreme Court has recognized "default" judgments when a Korean plaintiff was properly served, had the opportunity to be heard and the judgment was a final and conclusive judgment.

Thus, for a Korean court to recognize a judgement/order as a valid judgment the plaintiff:
A. Must have had an opportuity to be heard;
B. Must have been properly served; and
C. The judgment must be a "final and conclusive judgment."

2.  Recognition of the Foreign Court
Korea, broadly, recognizes the "international jurisdiction" of foreign court.  Korea may not recognize the judgments of courts that are perceived to not have transparent legal systems or that Korea does not have diplomatic relations with.

3.  Proper Service of Process
In most cases services must be via an international treaty on the service of process called the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters ("Hague Convention on the Service of Process").  The procedure to serve under the Hague Convention on the Service of Process may be found at: International Service of Process.  In some cases, the formalities of the Hague Convention does not need to meet.

4. Reciprocity
The foreign court must be deemed a court that recognizes the judgment of Korean courts.  Most courts in the world recognize Korean court judgments.

5. Good Morals and Social Order
The judgment must, also, not violate good morals or the social order of Korea.  This is a catch-all rule that has been applied to not enforce punitive damage awards and some judgments that were deemed to be obtained in a fraudulent manner.

**This is the first in a weekly blog post that I will begin writing that answers the questions of those with basic legal needs that may not require the active assistance of an attorney in Korea.  I envision that the majority of the readers will be small business owners and individuals. 

Many years ago I was asked to write a column for a local newspaper.  The article answered questions of readers - I will bring this column back to life.  The column was called Lex Pro Bono - I will keep this terrible name for this weekly blog post also.**

Please direct your questions to: SeanHayes@ipglegal.com and place the word: LEX PRO BONO in the subject field.  Please do not expect all questions to be answered.
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Sean Hayes may be contacted at: SeanHayes@ipglegal.com.
Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw.

Sean's profile may be found at: Sean C. Hayes