Admissibility of Hearsay Evidence in Korean Litigation

by Brendon Carr

Hoon Lee of Sigong Law P.C. (a firm comprised of several alumni from our firm Hwang Mok Park P.C., so you know they’re talented) has an informative post up on his KoreaLaw.com site concerning hearsay evidence under Korean law.

Korea has different rules of evidence—or, perhaps, no rules of evidence as we would understand them in the American civil procedure system. As Hoon notes, it’s considered to be improper for there to be rules governing what evidence is or is not admissible:

Article 202 of the Civil Procedure Act provides that “The court shall determine the truth of the matters asserted pursuant to its free convictions, consistent with social justice and equity and keeping in line with principles of logic and experience and taking the whole purport of pleadings and the results of the evidence investigation into consideration.” This is so called “the principle of free conviction.” That is, court judges are given total, free discretion to choose or throw out any evidence which come before them, or how much admissibility or value should be given to each evidence accepted.

Eye-opening stuff—anyone contemplating the possibility of litigation in Korea ought to check this one out, and take a look at my partner Doil Son’s Korea Herald piece on the difficulty of gathering evidence under Korean law.

Thinking of agreeing to Korean law as the governing law for your contract? Even if you choose an arbitration clause, you’d better understand what that means to your eventual ability to gather evidence for the resolution of any dispute which arises. The Korean Commercial Arbitration Board, for example, will use the Korean Code of Civil Procedure—with all its attendant weaknesses.

4 Responses to This Entry

1. Neil on October 27, 2007 @ 9:57 pm

   Wont this change very soon? I was under the impression that the impending introduction of the “jury system” means new evidence rules will be written up soon. And according to the law professor who was the force pushing for the jury system on the Judiciary Reform Committee, his choice to really press the jury reform issue was strategic—he knew that if they adopted it they would have to rewrite their criminal and procedural law (and civil?), and so acheiving an overhaul of the law.

2. Brendon Carr on October 27, 2007 @ 10:19 pm

   The “jury system” will apply to criminal trials only, and only a few of them. From January 2008 the court will have citizens sitting in on selected (not all) criminal trials—those involving violent crimes and not involving powerful business interests, I’m sure. So don’t pin all your hopes on the jury system.

   For the foreseeable future, in civil trials Korea’s lack of American-style rules of evidence will remain an issue to be considered by non-Korean parties to business transactions when they evaluate their dispute resolution options.

3. Brad Luo on October 31, 2007 @ 12:11 am

   With so much discretion to the judges, I was wondering what kind of review standards are in place to check this seemingly unlimited power to admit or bar evidence in court proceedings.

4. Brendon Carr on October 31, 2007 @ 8:59 am

   There are internal written “guidelines” within the professional administration of the bench (the Ministry of Court Administration of the Supreme Court) on all kinds of topics including the handling of evidence. The guidelines are largely observed out of judges’ instinct for self-preservation, because there are consequences to being too much of an individual.

   Because judges are reassigned on a regular basis, and there are varying assignments—lower courts in a crappy provincial town, or research assignments away from any decisionmaking power at all—there is self-generated pressure to conform to expectations.

   However, as a general rule, the Korean tendency is for the court to admit and consider any and all evidence presented, regardless of how it was obtained.

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