- The Korean Court System
The Korean judicial system is comprised of three tiers of courts: District Court, High Court, and the Supreme Court of Korea.
As courts of first instance, district courts deal with civil and criminal cases, while Family Court, Administrative Court, Patent Court, and Bankruptcy Court respectively function as the special courts.
In district courts, a panel of three judges presides over civil cases involving a controversial amount exceeding 200 million Korean won (approximately US $ 170,000), deemed of greater importance by laws.
All of appeal cases against judgments of a panel of three judges in first-tier courts are reviewed by high courts, except for patent infringement cases, of which appellate trials are vested in the Patent Court since 1 Jan. 2016. High court judges are appointed from among legal professionals who apply for the position with substantial legal experience, and high courts maintain specific divisions specializing in certain areas of law. The jurisdiction of high courts is exercised by a panel of three judges, but only the official opinion of the majority is published in judgments.
The Supreme Court of Korea, the court of last resort, is the highest judicial body in Korea, deciding only on points of law. The Supreme Court has one Chief Justice and thirteen Justices. The Supreme Court’s opinions are acknowledged to be the most authoritative precedents, thereby providing standards for the interpretation of laws and the application of legal principles. The Supreme Court has the power to make a definitive review on the constitutionality and legality of executive orders, government regulations, and any actions taken by administrative bodies.
- Mixed System of Civil Law and Common Law
As the Korean court system was originally influenced by the civil law tradition, statutes are the primary sources of law, and judges are not formally bound by decisions of a superior court or a court of equivalent standing. However, the Korean court system has adopted certain characteristics of the common law system, such as permitting dissenting opinions, though only in judgments handed by the Supreme Court, and giving greater weight to precedents of the Supreme Court. In practice, precedents of the Supreme Court with clear reasoning over disputed questions of law, are highly respected by lower courts and by the Supreme Court itself. However, the challenge by judges of first-tier or second-tier courts towards precedents of the Supreme Court with sufficient reason or professional conscience is also allowed. A decision of a high court is deferred by other high court judges or district court judges when there is no Supreme Court precedent. The feature contributes to maintaining the consistency and predictability of judicial opinions. Change of a precedent happens rarely, an additional characteristic of Korean judicial system embracing common law features. If the Supreme Court wishes to change its precedents, a case must be heard by the Grand Panel, consisting of one Chief Justice and twelve Justices. Precedent can be changed only by way of En Banc decisions of Supreme Court with detailed reasons supporting the change.
- Specialized Divisions for International Transaction-Related Disputes
In South Korea, there are no independent courts specialized in dealing with commercial disputes in the form of Commercial Court. Instead, high courts and district courts have specialized divisions which involve a forum for commercial disputes and a forum for international transaction-related disputes, given the complex nature of the matters and the demand for a high level of expertise resulting therefrom. For instance, Seoul High Court, the largest high court in South Korea, maintains four specialized divisions for commercial and corporate-related cases, and two separate divisions for international transactions disputes (which also handle, respectively, cases arising out of maritime affairs and arbitration issues). Seoul Central District Court, the largest and the most influential court of all the trial courts in South Korea, has two special divisions for disputes relating to international transactions as well as those arising from maritime matters and arbitration issues. The Court also has seven divisions for corporation-related disputes, two divisions of which deal with disputes relating to tax matters as well. Hence, almost all cases relating to commerce and international transaction are assigned to aforementioned specialized divisions which are deemed to have expertise in hearing the cases.
The specialized divisions for international transaction-related disputes deal with cases, inter alia, relating to:
– claims arising out of international commodity transactions and payments thereof;
– claims arising out of international goods transportation (by marine, air, and land);
– claims arising out of international shipping insurance; and
– claims arising out of recognition and enforcement of foreign judgment.