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December 13, 2018

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Prohibition On International Double Lawsuits In Korea


- Heechan Jeong, Managing Partner [ Anguk Law Offices ]
- Inyoung Rhye, Attorney Lawyer [ Anguk Law Offices ]

heechanjeong-inyoungrhye

Can We Sue In Domestic Court For A Claim Which Is Already Pending In Foreign Court? Read on to know...

I. Introduction

A lent 50 million KRW to B who he had gotten to know abroad, but B refused to pay it back. So, A sued B for not repaying the loan to B in a foreign court, but failed in the first trial. A filed the same complaint again with the Korean court, seeking loan repayment from B. How will the domestic court judge Mr. A’s claim? This kind of matter is also called ‘International Double Lawsuits’.

International Double Lawsuits

II. Prohibition on Double Lawsuits in Korean Law

‘Double Lawsuits’ refer to the latter lawsuit case in which? the plaintiff and the defendant, ? the objects of the lawsuits are the same as the former lawsuit case, and? the latter case is filed when the former case is still pending. Now, about the case above, we can say it’s a ‘double lawsuit’ because ? plaintiff (A) and defendant (B) are the same, ? the objects of the lawsuits (seeking payment of 50 million loan) are the same as the former lawsuit case, and ? A filed the case in a foreign court, and after that, he filed again in the domestic court.

Article 259 of the Korean Civil Procedure Act which stipulates about the double lawsuits is described as follows:

Article 259 (Prohibition of Double Lawsuits)

For the case pending before a court, neither party shall institute any lawsuit again.

If the case is already pending in a court, the parties shall not file a complaint for the same case again. And if the latter case comes under a double lawsuit, the latter court shall make a judgment of dismissal of a case. So, if the Article above applies to the case above, the latter lawsuit A filed in the domestic court would be dismissed as irregular demand for trial because the lawsuit is doubled in principal.

International Double Lawsuits

III. Application of the Prohibition on International Cases

Considering that one of the aims of the Civil Procedure Act which bans double lawsuits is to prevent inconsistent judgment among domesti courts, it is very questionable that the latter lawsuit should be prohibited and dismissed as double lawsuit according to Article 259 when the former lawsuit is pending in the foreign court.

There is no article or terms stipulating regarding double lawsuits. Meanwhile, the Supreme Court has never made a clear judgment on this issue.

In 2002.6.14. sentence, 2001Da2112, the Supreme Court judged that “the former lawsuit case is pending in the U.S. court and the case is about claim for damage on the vessel owner’s misconduct. Meanwhile, the latter lawsuit case is about claim for disaster compensation under the Sailor Act

pending in the Korean court. Thus, the objects of lawsuits are different from each other; so, the prohibition of double lawsuits is not applicable in this case.”

In the above case, the Supreme Court just dealt with the case as a matter of the object of lawsuits, not as international double lawsuits.

On the other hand, in the lower instance, the domestic courts dismissed the latter lawsuits as double lawsuits according to the ‘Theory of Approval Prediction’. (Seoul Local Court, 2002.12.13. sentence, 2000GaHap90940)

The principal point is that “when the former case is pending in the foreign court and the court’s judgment is predicted to be approved in Korea according to Article 217 of the Civil Procedure Act in the future, it could be seen that the pending pursuant to Article 259 exists; so, the latter claim on the same case to the domestic court is doubled and thus irregular.”

International Cases

Court’s intent probably is that:

If the foreign court’s judgment is approved in Korea, the foreign court’s judgement will have the same forces as the domestic court’s, and in this case, there is no reason to view foreign court rulings differently from domestic courts. So, applying Article 259 to the case that the former case is pending in the foreign court does not go against the aims of the Article of the Act.

IV. Conclusion

Although this judgment is of the lower court, it seems to be reasonable and sensible. But the ‘possibility of approval’, which the case judgment above stated, would be determined mostly depending on whether there is mutual guarantee between Korea and the foreign country. So, if the existence of mutual guarantees solely determines whether the latter is dismissed or not, which could result in people’s right to trial infringed. Also, any damages of people could not be recovered through the judicial process properly.

And such problems arise from the suggestion that according to the lower court’s judgment, the judgment from the foreign courts would get the same forces as domestic courts in Korea without the domestic courts not judging the case. But that could be rather irrational because a foreign country might have completely different contexts from Korean society, culture, and judicial system.

Furthermore, such a court’s judgment could be possibly against the Constitutional Law because the Civil Procedure Act prescribes nothing about such issues in writing.

There is a recent Korean Supreme Court’s decision pertaining to this issue. The case is about Korean victims who were forced to be engaged in hard labor at Japanese Steel during Japanese Occupation Period, claiming Japanese Steel and Japanese Government of such illegal activities. They have claimed to the Osaka High Court and the Supreme Court in Japan and defeated, before they issued the same claim to the Korean court.

And the Supreme Court in Korea judged:

Even if the plaintiff filed a lawsuit in the Japanese court prior to the case in Korea and the lawsuit in Japan was defeated by the Japanese court’s decision, the Japanese court’s decision is based on the perception that ‘Japanese Colonial Act on the Korean Peninsula’ should be applied to the plaintiff under the presumption that Japan’s colonial rule is legal. But the Constitution of the Republic of Korea considers Japanese Occupation for the conduct of a war of aggression, and denying the legitimacy of the war of aggression and its conduct is a common value of the world’s civilized countries. Therefore, the Japanese court’s decision couldn’t be accepted and has the legal effect because it violates good customs and other social order in Korea.

Similar decision has been pointed at a lower court’s decision (Busan Local Court 2007.2.2. sentence, 2000GaHap7960), and also the Supreme Court judged the same decision in a case, Supreme Court 2012. 5. 24., sentence, 2009 Da22549 (so called “Mitsubishi case”).

The point of the Supreme Court’s decision above is that if the foreign court’s decisions are against not only Korean public good and social order but also internationallyrecognized values, they cannot be accepted to have the same legal effect as the domestic’s even if they meet the requirements for approval of such judgments. In other words, in such cases, the latter claims will not be recognized as Double Lawsuits and will be judged in the domestic court in Korea. Such decisions are thought to be justified not only in terms of a basic idea of the Civil Procedure Act that the law should protect citizens’ right to be judged in courts, but also in terms of protecting universal values like justice and fairness.

Disclaimer – The views expressed in this article are the personal views of the authors and are purely informative in nature.

 

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