In some cases in Korean courts, it is advisable to obtain evidence held in a foreign jurisdiction for use in a Korean civil proceeding in a Korean court. The need often assists in establishing damages, course of dealings or the basis of liability. Additionally, in cases in non-Korean courts, evidence held in Korea may be useful in these foreign court proceedings for similar reasons.
The Korean Act on International Judicial Mutual Assistance in Civil Matters sets out specific requirements that need to be met before the Korean government may order the production of this requested evidence.
We have assisted foreign law firms in obtaining evidence in Korea and, also, we have requested evidence from foreign jurisdictions in pending cases in Korea. Korea has, thankful, improved, in recent years, its protocols for handling requests from foreign courts.
Please note, in a Korean lawsuit a Korean judge may request from a foreign government the production of evidence. We were, recently, involved in a case where we obtained critical import data from Australian importers that was used to establish damages in a case that was pending in a Korean civil court. The system is not typical and, in some cases, judges are unaware of this option,thus, a proactive lawyer is often needed to assist the judge in obtaining this evidence.
Korean Legal Test to Disclose Korean-Held Evidence to a Foreign Court
An affirmative answer to the following questions is, typically, required.
- Is reciprocity guaranteed or a judicial cooperation treaty in place?;
- Is the request made in writing?;
- Is the request made via the proper diplomatic channels?;
- Shall the request harm “public peace & order or the sound public morals?”;
- Are expenses guaranteed to be paid by the requesting government?;
- Is a Korean language translation provided?; and
- Is the request specific enough in order to determine the requesting party; summary of the case;nationality of requesting party; and other relevant specific details?
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