Let’s say you obtained damages recovery judgment from a U.S. court against a Korean residing in the states. Soon after your excitement for the winning judgment, however, you found he had no assets in the states to fulfill your judgment. This could also happen in litigation between U.S. citizens in a U.S. court where the losing defendant moved to South Korea and there are no assets left in the U.S. You might have spent quite a large amount of legal fees to win the judgment already, but you think your judgment is now in great peril to become useless. This horrible situation might frustrate you.
But, don’t worry too much. You can enforce your duly obtained U.S judgment in South Korea. If you are sure the defendant has enough assets to cover your claims in the judgment and your legal fees, you are encouraged to file an enforcement order for a foreign judgment to a Korean court.
Requirements for the Recognition and Enforcement
According to Article 218 of the Civil Procedure Act of South Korea, a final and conclusive judgment by a foreign court shall be recognized and enforceable in Korea, when all the following requirements are met:
1. The international jurisdiction of such foreign court is recognized under the principle of international jurisdiction pursuant to the statutes or treaties of South Korea;
2. A defeated defendant was served, by a lawful method(excluding cases of service by a public notice or similar), a written complaint or document corresponding thereto, and notification of date or written order allowing him/her sufficient time to defend, or a defeated defendant responded to the lawsuit even without having been served such documents;
3. The approval of such foreign judgment does not undermine good morals or other social order of South Korea in the perspective of the contents of such foreign judgment and judicial procedures; and
4. Mutual guarantee exists, or the requirements for recognition of a foreign judgment in South Korea and in the foreign country where the foreign court belongs are not far off balance and have no substantial difference between each other in important points.
Any foreign judgment which orders the defendant to do a specific action such as money payment and delivery of goods can be recognized and enforced according to the above rules. Korean Court had ruled that a foreign alimony order can be enforced, although the Korean legal system doesn’t recognize alimony.
Punitive Damages Award Unenforceable in Korea
As to the 3rd requirement above, please note that punitive damages awarded by a U.S. court are currently not recognized by the Korean court and therefore not fully enforceable in Korea. That is because the concept of punitive damages is not accepted by Korean law and the court sees it as violating the social order of South Korea.
In torts law of Korea, the damages a plaintiff is entitled to are only actual damages that can be found legally and reasonably caused by the tortfeasor, which amount is eventually quite smaller than punitive damages.
So, if you bring a punitive damages award from a U.S. court to a Korean court in order to get it recognized and enforced, the Korean court will reduce the amount of the award to the level where Korean law would find it consistent with Korean torts law.
Existence of Mutual Guarantee
As to the 4th requirement, the mutual guarantee that the act requires is similar to the concept of comity and reciprocal recognition of judgments in the U.S. The Korean law requires the foreign jurisdiction where the judgment was issued has established the standard for recognition of a Korean judgment which should not be more difficult to be met when compared to the Korean legal standard.
This is somewhat hard to grasp, but if your judgment came from a U.S. court, you don’t have to struggle, because the Korean court has been ruling that there exists a mutual guarantee between Korea and the U.S.
The Korean courts have so far recognized the mutual guarantee with, among others, California(U.S.A.), New York(U.S.A.), Texas(U.S.A.), Washington(U.S.A.), Minnesota(U.S.A), New Jersey(U.S.A), Ontario(Canada), China, Japan, Taiwan, and Russia.
By contrast, the Korean court had denied the existence of a mutual guarantee with Malaysia.
What to Do in Korea to Enforce Your Judgment
Petition for an Enforcement Order
If your Korean attorney opines that your foreign judgment is enforceable in Korea, the next step is to file a petition for an enforcement order with the Korean court.
This is a trial. The local trial court where the defendant resides will hear the case.
The court will review whether the foreign judgment meets the recognition and enforcement requirements. The court cannot review the merits of the case.
Execution of an Enforcement Order
If the court enters an enforcement order against the defendants, actually enforcement process is all the same as other monetary judgments rendered by Korean courts.
A major issue in this process is how the foreign creditor locates the debtor’s assets in Korea. Korean resident registration number is usually used for this purpose. If the name is the only information that a foreign creditor has in his file, it is almost impossible to clear this hurdle. Therefore, we highly recommend doing thorough research on this before taking legal action in Korea.
Also if you find assets in Korea, it is a good idea to seize the asset before filing the enforcement order petition.
Read More: Does Korean Court issue a Provisional Attachment Order in Support of the Proceedings in the Merit in Foreign Courts?
Read More: Provisional Attachment of Assets under Korean Law – How to Secure Your Monetary Claim Effectively in Korea
If you have any questions about the enforcement of foreign judgments in Korea, please send your inquiry to Mr. Justin Jung by clicking here.
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Because of the generality of this update, the information provided herein may or may not reflect the most current legal development at the time of view, nor is it applicable in all situations nor should be acted upon without specific legal advice based on particular situations.