Understanding Korean Evidence in the Korea Herald Law Talk Column
by Brendon Carr
Our firm Hwang Mok Park dragoons its members into publishing short law-related pieces in the Korea Herald English-language daily newspaper every week, ostensibly as a public service but we all know there is the hope of marketing benefit. For the same reason I keep this blog, in fact: If you learn something from the material published, the author hopes you’ll think favorably of using his services in the future.
This week’s Law Talk column was written by my partner Mr. Doil Son. Doil and I have a long history together, as we were paired associates at Shin & Kim in the very intense years 1999 and 2000, before I left that firm. In 2005 we had the occasion to get back together as SEOUL Law Group, a small firm we operated for a year before Hwang Mok Park invited acquisition of our entire practice and all employees. At HMP we continue to work together closely. Because of that early experience in our formative years as attorneys, Doil and I now think the same way—we analyze problems from the same perspective, basically because he and I taught each other how to do this job. That shared history and mutual trust level makes working together a lot easier. In fact, I can’t imagine being in law practice in Korea without Doil Son. If he decided to do something else—like run for President, become a private-equity grandee, or open a tattoo parlor—I’d hang it up and find another gig myself.
Anyway, these articles are alloted the space of something like 550 words—very tight space constraints. Lawyers tend to be wordier than that ordinarily, which makes it very challenging to turn out something good within the space alloted. However, I think Doil succeeded this week. I hope this is helpful to someone:
Korea Herald, September 12, 2007, page 8
Understanding Evidence Shortcomings in Civil Trials
by Doil Son
One of the most challenging aspects of the Korean justice system when viewed through the eyes of Western clients - especially those from common-law jurisdictions - is the production and preservation of evidence in civil proceedings.
Put simply, it is hard to compel non-cooperative parties to provide evidence through the civil court. Parties must therefore always be conscious of the preservation of documents and ancillary materials that may be useful in the event of future disputes, because the court cannot force the other party to provide evidence. Korea’s is very much a “come as you are” litigation system.
The reason for this often shocking and disappointing fact is that the Korean civil court does not exercise its full authority in an aggressive manner on three judicial instruments that have been adopted and actively used for civil proceedings in many other jurisdictions:
Discovery System. Particularly in American litigation, there is a concept that in order to find the truth, the parties are obligated to produce all evidence relevant to the dispute. This “discovery” process is characterized by the advance production of evidence through mandatory questioning, or deposition, of the parties and witnesses and any documentary evidence held by a party must also delivered to the opponent for review.
Lacking an effective discovery system (a system exists on paper, but lacks teeth), there is no advance deposition of parties or witnesses or mandatory production of documents. Evidence is only discovered through the trial itself, usually as a surprise.
Subpoena Power. Sometimes witnesses to the facts of a dispute are not parties to the dispute, but rather are bystanders. Still, their testimony concerning facts is often required to find the truth. For this reason, in most advanced justice systems the court has the power to compel third-party witnesses to attend and testify in court.
The Korean justice system has a concept of subpoena, or summons to testify, but lacks any effectively compulsory power. If a subpoenaed witness refuses to participate, there is no material sanction. Not surprisingly, most third-party witnesses stay away from court.
Contempt of Court. In Western countries, the judge has fearsome and intimidating power to sanction witnesses or litigants for misconduct or defiance of the court’s authority in the process of litigation - for example by hiding or destroying evidence.
This is called “contempt of court.” It is not at all uncommon for a judge to throw someone in jail in order to adjust the person’s attitude toward cooperating with the court.
However, in Korea there is no equivalent concept of contempt of court. The civil judge generally does not exercise the power to sanction witnesses or parties who refuse to follow court orders - or even where a party is caught lying or fabricating evidence.
Because of the foregoing limitations of the civil court’s ability to find the truth, the importance of criminal process and the role of state prosecutors are greatly enhanced. Prosecutors have the power to compel witnesses to appear and give testimony, and to confiscate evidence wherever it might be found. The investigation record is available to be introduced as evidence in civil proceedings upon the request of a party subject to several limitations.
Thus, when planning litigation strategy, it is very important to consider whether crimes under the Criminal Code or the penal provisions of any subject-specific statute may have been committed, so that the power of the state may be invoked to make up for the shortcomings of the civil system.
Comments
3 Responses to This Entry
Comments Policy: Comments to Korea Law Blog are moderated. This means abusive, or just plain stupid comments will be deleted. So don't be a jerk. It also means there may be some delay from the time you post a comment to the time it shows up here. If your comment wasn't against the policy, it will show up in a little bit.
-
About Korea Law Blog
Korea Law Blog is brought to you by Brendon Carr, an American lawyer working as a foreign legal consultant for more than 10 years in Seoul. (Brendon is not admitted as an attorney in Korea. But you knew that.) -
Contact Details
-
Tel. +82 (0)2 772 2734
Fax +82 (0)2 772 2800
Mobile +82 (0)10 8788 0750 -
Download My FREE Korea Employment Law FAQ
-
Korean Media
-
Blogroll
-
Very informative article and it really shows some of the immaturity of the Korean legal system in general. I’m sure it is a daily chagrin. One thing I learned from a supreme court justice acquaintance of mine is that the Korean courts also will not “throw out” any evidence that is presented in civil OR criminal trials. This means for exampe that serreptitious recordings, though illegal, will not be removed as evidence in a trial....in his words “the judge will listen to and consider ALL evidence regardless of it’s source.” I assume that this means that evidence obtained by entrapment or other illegal sting would also be admitted even if that evidence were ‘tainted’ or even fabricated.
Considering the source, I have to assume it is correct, but I find it difficult to believe that basically the system boils down to who is the most convincing liar...no?
I have strong feelings about people (ab)using criminal proceedings for the purpose of using the evidence obtained in civil court. The common pattern for the plaintiff would go something like this - report a defaulting debtor or such to the authorities as guilty of criminal fraud, let the police and prosecutors investigate all the facts, use all the criminal evidence in civil court for free, and have the added bonus of watching the defendant stew under the pressure of a criminal investigation.
Under the current system it’s a highly effective strategy, but my beef with this is that the costs for what is in effect a private (civil) case are borne by the state at the expense of other matters that are more deserving of attention. My impression of this kind of case while interning at a prosecutor’s office was that I was spending a whole lot of my time on what was often just a case of a debtor going bust and the creditor suing their ass, which in itself is not grounds for conviction. Since civil plaintiffs don’t have to shoulder what should be their full share of legal costs, this makes for skewed incentives on their part in making decisions to litigate or settle and results in overall inefficiencies.
And there is a mistake in the article I’d like to point out - namely that the prosecutors DON’T have the power to compel the attendance and testimony of third-party witnesses in the course of an investigation. They DO have the power to compel the attendance of a criminal suspect, who might have the status of witness in a civil trial, but that is a different matter. Most people don’t know this, which is why most third-party witnesses will cooperate with an investigation, but there is no penalty or sanction police or prosecutors can independently impose on non-cooperating witnesses. There are other ways in which Korean law-enforcement, despite seeming fearsome to the unknowing layperson, is lacking in official powers which their western counterparts might take for granted.
leefr, thanks for the comment.
You’re right—the article does not clearly make the necessary distinction between criminal-suspects-who-may-be-witnesses-in-a-civil-trial and third-party witnesses when describing the prosecutors’ compulsory power, and a reader could get the wrong idea. Third-party witnesses tend to stay away in droves. It’s a common problem encountered in corporate fraud and embezzlement prosecutions—the other employees of the company won’t participate. Sometimes these refusenik employees are the same ones who blew the whistle in the first place!
As to how this kind of nuanced error gets into an article, there are two possibilities: (i) you would not believe the internal battles that go on within our office between the authors of the pieces and one particular partner who wants to make sure nobody’s ox gets gored, lest we offend somebody, and thus spends a lot of time with his red pen rewriting to “soften” every message; and (ii) after we get past the fraidy-cat factor in our office, there are layperson editors that take their hand at things. We have a pretty tight word-count limit to work within as well. I don’t have the original in hand right now, but I’ll bet something like that was at work.