Article 203 of the Korean Code of Civil Procedure provides as follows (Choe, p. 1153):
A final foreign judgment shall be valid and enforceable only if it satisfies the following conditions:
1. The jurisdiction of the foreign court of judgment is not denied by any law, or treaty;
2. if the losing defendant is Korean, he received service of summons or other orders necessary for the commencement of the action other than by public notice, or he made an appearance without receiving service thereof;
3. the foreign judgment is not contrary to the public policy or good morals of Korea; and
4. reciprocity is secured between Korea and that foreign country.
Two other provisions of the Korean Code of Civil Procedure are also of significance to enforcement:
Article 476 provides:
1. Enforcement based on the judgment of a foreign court may be carried out only when the admissibility thereof is pronounced by way of a judgment of enforcement rendered by the Korean court.
2. In regard to a suit demanding a judgment of enforcement, the District Court of the place where the general forum of a debtor exists shall have jurisdiction, and in case no general forum exists, the court having the jurisdiction over the action against the debtor in conformity with provisions of Article 9 shall have jurisdiction.
Article 477 provides:
1. A judgment of enforcement shall be rendered without inquiring into the merits of the decision.
2. A suit demanding a judgment of enforcement shall be dismissed in the following cases:
(i) When it is not certified that the judgment of a foreign court has become irrevocable;
(ii) When the foreign judgment does not fulfill the conditions prescribed in Article 203.
The effect of the three statutory provisions is to provide several distinct requirements that must be satisfied if a foreign judgment is to be enforced in Korea:
The requirement of finality and conclusiveness
Interim awards are not the subject of enforcement proceedings in Korea. (Choe, p. 1154). Foreign temporary dispositions are not recognizable because of their nature as provisional remedies. (Kim, p. 7).
A foreign judgment will be considered a final judgment only if there exists no possibility of a future appeal. (Choe, p. 1154). The party seeking to enforce a foreign judgment must prove either that an appeal is not possible or that the time for an appeal has passed. (Choe, p. 1154). California counsel should advise as to whether or not these conditions have been fulfilled.
An order for pre-judgment attachment and an order for pre-judgment injunction are examples of non-final judgments. Similarly, even if a foreign judgment which is permitted provisional enforcement pending an appeal is enforceable in the concerned jurisdiction, it cannot be a subject of recognition in Korea so long as it is not final. (Chung, p. 68).
The issue of the location of the subject-matter
The in personam and in rem concepts are alien to Korean jurisprudence. (Choe, p. 1154). Generally, a foreign judgment in rem would be recognized and/ or enforced in Korea when the judgment concerns immovable or movable property that was within the jurisdiction of the foreign court at the time of the proceeding. (Choe, p. 1155).
The jurisdiction of the foreign court
It is clear that a Korean court will not enforce a judgment of a foreign court concerning a dispute that is subject to the exclusive jurisdiction of Korea or a third country. For example, in an action concerning rights in Korean real estate Korean courts have exclusive jurisdiction. (Choe, p. 1155).
This will apply to movables located in Korea. (Kim, p. 8).
Public policy or good morals in Section 203 are judged by Korean standards. (Choe, p. 1157). The requirement has a broad meaning, which may range from substantive contents of the foreign judgment to procedural fundamentals. (Choe, p. 1157). The reasons leading to the conclusion as well as the conclusion of the foreign judgment itself should be examined in deciding whether or not the content of the foreign judgment is contrary to public policy or good morals. (Choe, p. 1157).
A judgment ordering payment of support money should be recognized at least in cases involving foreigners, even if it based on polygamy, in view of the fact that the violation of the principle of monogamy is merely indirect. (Choe, p. 1157). Public policy means the fundamental principles or ideology of Koreas national legal order and the general sense of morality prevailing in Korean society. The compatibility of a foreign judgment with public policy should be determined by comparing the personal and public interests that might be promoted by recognizing a foreign judgment with the possibility that the national legal order or social ethics may be infringed thereby. (Kim, p. 14).
A foreign judgment, the substance of which is not compatible with fundamental principles of Korean law, cannot be recognized in Korea. In determining compatibility with public policy, the factual basis of a judgment, as well as its text, must be taken into consideration. Thus, even a monetary judgment may be held in violation of Korean public policy if the factual basis of such judgment is so illegal or repugnant that the assistance of the Korean courts in implementing the judgment is deemed unacceptable in light of Korean legal philosophy. For example, a judgment ordering the defendant to deliver contraband goods, or a judgment confirming the legality of a concubine is not recognizable in Korea. (Kim, p. 15).
Article 17(1) of the Korean Conflict of Laws Act provides that The matrimonial property system shall be governed by the lex patriae of the husband at the time of the marriage. Article 18 of the Korean Conflict of Laws Act provides that Divorce shall be governed by the lex patriae of the husband at the time of the occurrence of the causal facts: Provided that the court may not adjudicate a divorce if the causal facts do not constitute the chief causes for a divorce under the Acts of the Republic of Korea.
Article 23 of the Korean Conflict of Laws Act provides that The duty to support shall be governed by the lex patriae of the person liable to support.
Article 840 of the Korean Civil Act sets forth the bases for a judicial divorce, which are:
- act of unchastity,
- malicious desertion,
- extreme maltreatment,
- death or life of the spouse is unknown for three years and
- any other serious cause for making it difficult to continue the marriage. There is no provision for a no-fault divorce (except for a divorce by agreement between the parties).
The Korean judicial divorce is premised on the fault-based system of a contest between a wrongdoer and the wronged. The courts reason that a guiltless spouse should not be forced into unwanted divorce. Korean legal scholars supporting the fault-based system generally cite the following reasons: Granting divorce to the party at fault goes against the Confucian morality (doei), and it may encourage the husband to arbitrarily abandon his wife, as was the practice in the past. Moreover, by forcing a couple to stay in marriage, it is believed that a wife will be able to continue to use the common property and receive support. (Lee, p. 492).
The standards that govern divorce and child custody in Korea are extremely subjective and the judges are vested with great discretion. The standards are very flexible. (Lee, p. 493). In the Korean system, the judge is intended to be a parent to the public, who is benevolent, lenient and wise (Lee, p. 489).
It is not necessary that a Korean judgment has been recognized in practice if it is predictable that a Korean judgment will be recognized in light of statutes and legal theories in the foreign country. (Choe, p. 1157). The conditions of recognition do not have to be identical in Korea and the foreign country. A substantial similarity in important points of the respective requirements should be considered sufficient. (Choe, p. 1157). The term reciprocity in Section 203 means that the particular foreign country does not inquire into the merits of a Korean judgment by reason of a treaty or its domestic law, and that such foreign country would recognize the validity of a Korean judgment under a standard similar to or more lenient than that of Article 203. (Choe, p. 1158). Reciprocity means that as the Korean courts recognize judgments of foreign courts, so should the foreign courts recognize Korean judgments. Reciprocity purports to prevent inequitable treatment of Korean judgments by foreign courts. (Chung, p. 70).
Several scholars construe reciprocity to mean that the foreign equivalent of Art. 203 must be either the same or more lenient than the Korean standards for reciprocity. (Choe, p. 1158). Others argue that the foreign recognition standards not differ in any important respects from the requirements found in Art. 203. (Choe, p. 1158). Recognition of a foreign divorce judgment becomes impossible, however, if the husbands national law is not applied in a suit in which the divorce defendant is Korean. The only court case to face this issue involved a Nevada ex parte divorce decree granted to a Korean businessman who had previously established a temporary residence in New York. The Supreme Court case 71 Da 1634 on Oct. 22, 1971 refused to recognize the Nevada divorce judgment between two Korean spouses on the ground of reciprocity.
Since the Nevada court granted him a divorce for a reason not available in Korea (noncohabitation), the Supreme Court reasons that giving res judicata effect to the Nevada judgment, and thereby barring the wifes subsequent suit for divorce for malicious desertion and a monetary settlement, which it was considering, would violate Korean public policy evident in Article 18 of the Law concerning Conflict of Laws. While a foreign divorce judgment may be conclusive as to the question of marital status without application of Article 203, any provisions for payment of support can only be enforced by a suit in exequatur under Article 476. Recourse to exequatur on the foreign judgment will therefore cause Article 203 to become directly applicable, including the reciprocity requirement in Article 203 (4). (Choe, p. 1159).
In a 1971 case involving the recognition of a divorce decree of a Nevada state court, the Supreme Court of Korea clearly declared its support of the first theory (that is, the theory of same or more generous conditions). However, although the Supreme Court has never expressly admitted that it changed its position on this point, the Supreme Court is generally believed to have changed its position and nowadays to support the second theory since a decision of the Seoul District Court of 1995 which expressly took the second theory was upheld by the Supreme Court. Reciprocity means that as the Korean courts recognize judgments of foreign courts, so should the foreign courts recognize Korean judgments. Reciprocity purports to prevent inequitable treatment of Korean judgments by foreign courts. (Chung, p. 71).
The lower Korean courts have held that there was reciprocity between Korea and the State of New York, Germany, Japan, respectively. However, the Supreme Court of Korea denied the existence of reciprocity between Korea and Australia. (Chung, p. 72).
Extent of Recognition/ Enforcement
It is generally accepted in Korea that when a foreign judgment deals with more than one claim, recognition may cover only part of the judgment. It was not clear whether the amount for a judgment for one claim may be recognized only partially in terms of amount. An example is to recognize a judgment for punitive damages only to the extent consistent with the public policy of Korea by reducing the amount of the judgment. However, in a recent case the Supreme Court of Korea upheld the decision of the Seoul District Court which has expressly recognized only 50% of the amount of the foreign judgment. (Chung, p. 72-73).
There is also the question of public policy about a foreign judgment (particularly an American court) awarding so-called punitive damages or excessive damages. Some commentators have argued that Korean courts should refuse to recognize such a foreign judgment since it is inconsistent with the international standards for compensation of damages or, alternatively, Korean courts should reduce the amount of damages to a level comparable to international standards. In this connection, it should also be noted that the Conflict of Laws Act of Korea provides that damages for a tort committed abroad may be awarded in Korea only to the extent allowed under the relevant Korean law (Sec. 13 (3) CLA). In light of this provision, it may also be argued that a foreign judgment awarding damages for an amount greater than the one that may be awarded by a Korean court in a similar case should be regarded to be contrary to the public policy of Korea. (Chung, p. 75).
The 1995 case involved the recognition and enforcement of a judgment of the court of the State of Minnesota against the Korean defendant ordering payment of $500,000 as damages (including mental anguish, physical injury, consequent medical expenses, loss of earnings, etc) plus reasonable compensation for damages arising out of the assault and rape of the plaintiff, the Eastern Branch of Seoul District Court found that the amount of award was much higher than would be acceptable under Korean law for such damages and thus reduced the amount of compensation that would be enforceable to $250,000, i.e. 50% of the original amount awarded by the Minnesota court, based upon the rationale that recognition and enforcement of the portion in excess of $250,000 would be against the public policy of Korea. The judgment was upheld by the Supreme Court of Korea in 1997. See Judgment of September 9, 1997 in re 96 Da 47517 Case. (Chung, p. 77-78).
Choe Kong Woong Choe, "Jurisdiction in Korean Conflict of Laws," Korean Journal of Comparative Law 89-113, 1977. Reprinted in The Law of Criminal and Civil Procedure.
Byung Suk Chung. Transnational Litigation: A Practitioners Guide. Issued December, 2000.
Dook-Sik Kim. "International execution against judgment debtors. 1998.
Lee. "Confucian ethics, judges and women: Divorce under the revised Korean Family Law," Pacific Rim Law and Policy Journal, 1995.