HOW TO SERVE LEGAL PAPERS IN SOUTH KOREA

Service of process involves notifying the other party ( the defendant), the court, or an administrative body that legal action has been taken against them in order to exercise jurisdiction over them and reply to the proceedings before that court, body, or other tribunals.

All Contracting Parties to the Hague Service Convention are required to have a Central Authority[1] in place. Requests for service of papers are handled primarily by a Central Authority, which either serves the documents itself or makes arrangements for their delivery to recipients. Additional authorities may be designated by the Contracting Parties and the scope of their competence may be determined by the Contracting Parties.

THE LEGAL SYSTEM OF SOUTH KOREA

The Constitution of the Republic of Korea serves as the foundation for South Korea’s civil law system. An autonomous three-tiered judicial system was established on September 26TH, 1949, when Congress approved the Court Organization Act.[2]

Continental style inquisitorial systems have been adopted by Korean courts, which is a departure from the adversarial method used in England. Korean prosecutors, like their counterparts in China and Japan, carry out criminal investigations in some capacity, whether directly or via other means. Another change from the British or American system is the admission of suspect interrogation recordings created by prosecutors without the presence of defense counsel. An unrepresented confession is admissible if the suspect attests to its veracity in court or at an earlier hearing or trial. Despite the fact that the suspect may deny its veracity, the record may still be used against him if there is any evidence that it is reliable. However, a police officer’s recording is inadmissible if the defendant subsequently rejects its validity.

A breach of due process is a violation of both the Constitution and Penal Code’s prohibitions on ex post facto legislation. A person accused of a crime caught in flagrante delicto or who offers a significant danger of escape or destruction of evidence may only be arrested ex post facto in the case of an ex post facto warrant issued by a judge in the event of an arrest, detention, search, or seizure. In addition, no criminal suspect may be tortured or made to testify against himself. Individuals detained for a crime must also be provided with legal representation and the opportunity to petition a court for habeas corpus under the Constitution.

Chapter II of the Constitution guarantees citizens of the Republic of Korea a variety of civil rights and protections, as well as the need to serve in the military and pay taxes. However, these rights may be restricted in the interest of public safety and social harmony. Propagating anti-government ideology (particularly communism) and joining anti-government groups are both illegal under the National Security Act.

HOW IS DOMESTIC PROCESS SERVICE SERVED IN SOUTH KOREA

The commissioned service in a foreign country pursuant to Article 191 of the Civil Procedure Act cannot be realized if the address or place of residence of the responder is not specified by public proclamation ex officio or upon request of the relevant party. To signify that papers lodged with a court official would be delivered within two weeks of their posting, the court bulletin board must include this information[3].

As long as a court order that process is served, even if any of the above-mentioned conditions fail, it will be valid. It is possible to serve a summons through public announcement in cases when the defendant’s location is known or if the defendant is situated outside of jurisdiction[4].

The Supreme Court Regulation allows for publishing on the court’s bulletin board or in the newspaper, and it will take effect two weeks or five days after the posting, whichever comes first[5]. There will be no legal impact if the serving of process was performed in an unauthorized manner. A question may arise about the time limit for an appeal or the filing of an appeal statement.

Act on International Judicial Mutual Assistance in Criminal Matters governs the criminal proceedings. According to the treaties between Korea and a number of countries, judicial aid in civil or commercial proceedings or criminal matters may be guaranteed in terms of delivery of court papers; taking of evidence, and exchange of legal information and records[6].

HOW TO SERVE LEGAL PAPERS IN KOREA VIA THE HAGUE CONVENTION

After the Republic of Korea (often referred to as South Korea) signed the Hague Service Convention on November 15, 1965, and went into force on August 1st of the following year, the Hague Service Convention became effective for the country on January 13, 2000. Although the service requirements of the receiving nation must be followed, a judgment may become unenforceable if they are ignored.

Contracting parties are required to utilize a single channel of transmission, but the ability to employ other routes remains. There are no substantive provisions pertaining to the actual service of process addressed or included in the Convention, which focuses on document transfer. However, the Convention specifies two modes of transmission where service of process might be sent to the final addressee throughout the transmission process: direct diplomatic or consular channels and the postal channel. All other transmission methods covered by the Convention are extraneous.

MAJOR CONCERNS FOR SERVING OF LEGAL PAPERS IN SOUTH KOREA

Several of the world’s most well-known brands are based in South Korea

As a result, Korean corporations are regularly sued in international courts, particularly in the United States.  Contracting parties are required to utilize a single channel of transmission, but the ability to employ other routes remains. There are no substantive provisions pertaining to the actual service of process addressed or included in the Convention, which focuses on document transfer.

However, the Convention specifies two modes of transmission where service of process might be sent to the final addressee throughout the transmission process: [A.]  direct diplomatic or consular channels and [B.]  the postal channel. All other transmission methods covered by the Convention will need an extra. As long as the recipient’s name, address, and nature of the service are all included in the transmission, then the Convention kicks in, regardless of whether a judicial or extrajudicial document is being sent from one Contracting Party to another for service (Article. 1[7]). In other words, if these conditions are satisfied, then the individual must use the transmission channels specified by the Convention. It is vital to remember that the law of the forum will ultimately decide whether or not transmission to another Contracting Party is required.

It is not unexpected that the timeline for Hague Service requests in South Korea varies since a single authority handles a large number of requests each day. Between three and eight weeks after the papers arrive in South Korea, Hague Requests are served. The Hague Certificate will be sent to the plaintiff in four to six weeks from when it was forwarded to the central authority[8]. In principle, a competent court, as an appropriate agency, serves the document by registered mail (recorded delivery) or an executive officer serves the documents as prescribed by the Korean Supreme Court Regulations. Where the translated document is not attached, or the applicant requests so, the competent court may serve by informal method pursuant to Article 5(1)(b).

REQUIREMENTS FOR TRANSLATION OF DOCUMENTS IN SOUTH KOREA

Lawsuits should submit a translation of their English papers to the Central Authority, even though no translation requirements have been stated by the government of Korea. Foreign governments often refuse to carry out Requests that Central Authority officials cannot comprehend, although making no public pronouncement to that effect. Alternatives include making service optional and giving the defendant a say in whether or not he wants to accept any papers that do not arrive with an English translation.

A defendant must also be able to comprehend the papers that have been served on them in accordance with US legal precedents for due process. Consequently, a Korean defendant may be able to quash service if the papers are not translated. The translation of papers served on a defendant who does not speak either English or Korean is also likely to be required.

Korea’s statement to Article 5(3[9]) implies this, and the Central Authority will deny the request even if the defendant speaks perfect English. To be safe, they recommend that the service paperwork be accompanied by a translation[10].

According to Article 10, the Republic of Korea is opposed to any type of alternative service. Consequently, only via Article 5’s Central Authority route may service be provided[11]. Forwarding authorities for the Korean Process service would be the court in which the proceedings were initiated[12].

Sources

[1] Address

National Court Administration

Attn.: Director of International Affairs

Seocho-daero 219

Seocho-gu

SEOUL 06590

Republic of Korea

Telephone:

+82 (2) 3480 1734

Fax:

+82 (2) 533 2824

E-mail:   

international@scourt.go.kr

Contact person: Director of International Affairs

General website:  https://eng.scourt.go.kr/eng/main/Main.work

[2] . As stated in Article 103 of the updated Constitution in 1987, “Judges rule independently according to their conscience and in accordance with both the law of the land and the Constitution.” After the 1987 revision, South Korea’s Constitutional Court was constituted for the first time in its history.

[3] Of the Civil Procedure Act’s Articles 194, 195 and 196 (1) Civil Procedure Act and Civil Procedure Rules (Part I, Chapter IV, Section 4).

Available at: http://www.law.go.kr/main.html

An English translation is available at: http://elaw.klri.re.kr/

[4] The Criminal Procedure Act, section 63.

[5] The Criminal Procedure Act, article 64.

[6] U.S. Embassy Seoul

188 Sejong-daero, Jongno-gu,

Seoul 03141, Korea

Telephone: +(82) (2) 397-4114 (from within Korea, dial 02-397-4114)

DSN:721-4114

Fax: +(82) (2) 397-4101

Email: seoulinfoACS@state.gov

U.S. Consulate in Busan

Lotte Gold Rose Building #612, Jungang-daero 993, Jin-gu

Busan 47209, Korea

Telephone: (+82) 51-863-0731

Email: BusanConsulate@state.gov

The Embassy and Consulate are closed on weekends and on American and Korean holidays. Emergency After-Hours Telephone: +82 (2) 397-4114.

[7] Article 1

The present Convention shall apply in all cases, in civil or commercial matters, where there is an occasion to transmit a judicial or extrajudicial document for service abroad.

This Convention shall not apply where the address of the person to be served with the document is not known.

[8] The following data is in accordance with the recent survey conducted by the National Court of Administration.

In 2012, the Central Authority received 604 requests for service. Of these:

• 200 were executed in less than 2 months

• 240 were executed in 2-4 months

• 99 were executed in 4-6 months

• 21 were executed in 6-12 months

• 8 were executed in more than 12 months

• 4 are currently pending

In 2014, 435 requests were received. Of these:

• 259 were executed in less than 2 months

• 73 were executed in 2-4 months

• 18 were executed in 4-6 months

• 22 executed in 6-12 months

• 0 were executed in more than 12 months

• 63 are currently pending

In 2018, 955 requests were received. Of these:

• 661 were executed in less than 3 months

• 64 were executed in 3-6 months

• 14 were executed in 6-12 months

• 6 were executed in more than 12 months

• 210 are currently pending

[9] Article 5

The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either –

a)  by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or

b)  by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.

Subject to subparagraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily.

If the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.

That part of the request, in the form attached to the present Convention, which contains a summary of the document to be served, shall be served with the document.

[10] Costs relating to the execution of the request for service

(Art. 12):              1. When an execution officer serves the documents pursuant to Article 5(1).

2. The use of a particular method of service, pursuant to Article 5(2).

[11] . Domestic regulation

Act on International Judicial Mutual Assistance in Civil Matters (in particular Chapter 2 and 3)2. Bilateral Agreements on judicial assistance in civil and commercial matters: Australia (17 September 1999); People’s Republic of China (7 July 2003); Uzbekistan (23 November 2004); Mongolia (15 October 2008).

[12] Article 3

The authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legalization or other equivalent formality.

The document to be served or a copy thereof shall be annexed to the request. The request and the document shall both be furnished in duplicate.

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