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ACT ON INTERNATIONAL JUDICIAL MUTUAL ASSISTANCE IN CIVIL MATTERS

ACT ON INTERNATIONAL JUDICIAL MUTUAL ASSISTANCE IN CIVIL MATTERS


INTRODUCTION


Details of Enactment and Amendment

- This Act was enacted in March 8, 1991 in order to provide procedures in any civil case, to entrust a foreign country with judicial cooperation, and to settle judicial cooperation entrusted by a foreign country, which is increasing between two or more countries with the increase of international exchange.


Main Contents

- Judicial cooperation shall be carried out in case of documents or examination of evidence in a trail of civil matters, and entrustment to a foreign country and entrustment by a foreign country shall be clearly distinguished.
- Entrustment to a foreign country shall be made by a foreign court or other public office, with submission translation of the written entrustment and in case the expenses under this Act is to be borne by the party, an estimated amount of such expenses shall be paid in advance.
- Entrustment by a foreign country shall fall under the jurisdiction of the court in the first instance which has jurisdiction over the place where service is made or address of witness.
- Even though a treaty relating to judicial cooperation is not concluded, if the country to which the foreign court entrusting the judicial cooperation belongs, guarantees that it will comply with any entrustment of judicial cooperation by the court of the Republic of Korea with respect to the same or similar matters, this Act will apply.
- If entrusted matter is detrimental to public peace and order, injure good public morals in the Republic of Korea, or the entrustment is not made through diplomatic channel, the Director of the Court Administration Office shall transfer it to the competent court.
- The matters entrusted by a foreign country shall be implemented in conformity with the laws of the Republic of Korea; Provided, that in a case where the foreign court requests to implement it through a specific way, if such a way is not contrary to any law of the Republic of Korea, the implementation shall be made in such a way.


For Further Information, Please Contact :

- Ministry of Justice
International Legal Affairs Division
Tel : (82-2)-503-9095 Fax : (82-2)-504-1378

- Website : www.moj.go.kr




ACT ON INTERNATIONAL JUDICIAL MUTUAL ASSISTANCE IN CIVIL MATTERS

Act No. 4342 Mar. 8, 1991




CHAPTER I GENERAL PROVISIONS



Article 1 (Purpose)

The purpose of this Act is to provide procedures in any civil case, to entrust a foreign country with judicial cooperation, and to settle judicial cooperation entrusted by a foreign country.



Article 2 (Definition)

For the purpose of this Act, the definition of terms shall be as follows:
1. The term "judicial cooperation" means any cooperation made by a court, other public office, etc. for carrying out in a foreign country domestic formalities on service of documents or examination of evidence in a trial, or for carrying out in Korea the foreign formalities thereon;
2. The term "entrustment to a foreign country" means an entrustment of judicial cooperation made by a court of the Republic of Korea to a foreign court or other public office, or the ambassador, minister or consul of the Republic of Korea to the foreign country; and
3. The term "entrustment by a foreign country" means an entrustment of judicial cooperation made by a foreign court to a court of the Republic of Korea.



Article 3 (Relation with Treaty, etc.)

In a case where a treaty and other international law corresponding to the treaty provide otherwise with respect to judicial cooperation procedures as prescribed by this Act, the former shall prevail.



Article 4 (Reciprocity)

Even though a treaty relating to judicial cooperation is not concluded, if the country to which the foreign court entrusting the judicial cooperation belongs, guarantees that it will comply with any entrustment of judicial cooperation by the court of the Republic of Korea with respect to the same or similar matters, this Act shall apply.



CHAPTER II ENTRUSTMENT TO FOREIGN COUNTRY



Article 5 (Other Party of Entrustment)

(1) Any entrustment to a foreign country shall be made by the presiding judge of the court which has accepted the lawsuit, to the competent court or other public office of the foreign country.
(2) The presiding judge of the court which has accepted a lawsuit, may make an entrustment to a foreign country by the following subparagraphs:
1. If the person to whom the service is to be made, or who is to undergo an inquiry, is a national of the Republic of Korea, and resides in a foreign country which is a member of the Vienna Convention on Consular Relations, the entrustment shall be made to the ambassador, minister or consul of the Republic of Korea in the foreign country. In this case, it shall not be contrary to the statute or the declaration of intention of the foreign country; and
2. If the foreign country approves it by an obvious declaration of its intention, the entrustment shall be made to the agency implementing such declaration of intention.



Article 6 (Channel of Entrustment)

(1) The head of the court to which the presiding judge of the court who wishes to make an entrustment to a foreign country belongs, shall request the Director of the Court Administration Office to send the written entrustment and other related documents.

(2) The Director of the Court Administration Office shall request the Minister of Foreign Affairs to send the written entrustment and other related documents as provided in paragraph (1) to the entrusted agency as provided in Article 5, through a diplomatic channel.



Article 7 (Appending of Translation)

(1) In a case where a judicial cooperation is entrusted to a court or a public office of a foreign country, the translation of the written entrustment and other related documents in the official language of the foreign country shall be appended: Provided, That if such official language of the foreign country is not known, it may be allowed to append a translation in English.
(2) The party shall append a translation to the entrustment-related documents to a foreign country, which are to be submitted to the court which has accepted the lawsuit.

(3) In a case where a person to whom the related documents are to be served, is a foreigner, and he entrusts the ambassador, minister or consul of the Republic of Korea in the foreign country, that he is deemed as an implementing agency, with a service thereof with the approval of the foreign country under 2 of Article 5 (2) 2, the provisions of paragraphs (1) and (2) shall apply mutatis mutandis to such documents to be served.
(4) The expenses for translation incurred under paragraphs (1) and (3) shall be part of the costs of the lawsuit.



Article 8 (Method of Service through Ambassador, etc.)

In a case where service as prescribed in this Act is made by the ambassador, minister or consul of the Republic of Korea in a foreign country, the documents to be served shall be delivered directly to the person who is to be served, or it shall be served through the mail service to attest the fact that the delivery thereof has been made.


Article 9 (Expenses for Entrustment)

If the expenses needed for service or examination of evidence under this Act is to be borne by the party, an estimated amount of such expenses shall be paid in advance.



Article 10 (Service by Public Notice)

(1) In a case where service to be made in a foreign country is made by public notice, the court official of Grade IV, V, VI or VII shall keep the documents to be served, and put up a notice and the reasons thereof on the court billboard, and at the same time notify it to the ambassador, minister or consul of the Republic of Korea in the foreign country concerned.

(2) The provisions of Article 6 shall apply mutatis mutandis to a case where notification is made under paragraph (1).



CHAPTER III ENTRUSTMENT BY FOREIGN COUNTRY



Article 11 (Competent Court)

Any entrustment by a foreign country shall fall under the jurisdiction of the court in the first instance which has jurisdiction over the place where service is made, in a case of service entrustment, and has the jurisdiction over the domicile of the witness or the seat of evidence and other objects to be verified or appraised, in a case of entrustment as to an examination of evidence.



Article 12 (Requirements for Mutual Cooperation)

Any judicial cooperation with respect to an entrustment by a foreign country may be given only when it conforms to the following subparagraphs' requirements:

1. That a judicial cooperation treaty is concluded with the country to which the entrusting court belongs, or there is a guarantee as provided in Article 4;
2. That it will not be detrimental to public peace and order and good public morals in the Republic of Korea;
3. That the entrustment is made through diplomatic channel;
4. That the entrustment of service is made in writing specifying the name, nationality, address or residence of the person to be served;
5. That the entrustment of evidence examination is made in writing specifying the party, summary of case, methods of evidence, or the name, nationality, address or residence of the person to be inquired and matters to be inquired, in a case of witness inquiry;
6. That a translation in the Korean language is appended; and
7. That the country to which the entrusting court belongs, guarantees the payment of expenses needed for implementing the entrusted matters.



Article 13 (Reception of Written Entrustment)


(1) Any written entrustment of judicial cooperation prepared by a foreign country shall be received and sent to the competent court as provided in Article 11 by the Director of the Court Administration Office.

(2) If it is deemed that the entrustment made by the foreign country fails to meet the requirements as provided in Article 12, the Director of the Court Administration Office shall return it to the foreign country with the reason thereof specified.



Article 14 (Transfer)


If the entrusted matters do not fall under its jurisdiction, the court which has received the written entrustment of judicial cooperation under Article 13, shall transfer it to the competent court, and notify the fact to the Director of the Court Administration Office.



Article 15 (Proper Law)

The matters entrusted by a foreign country shall be implemented in conformity with the laws of the Republic of Korea : Provided that in a case where the foreign court requests to implement it through a specified way, if such a way is not contrary to any law of the Republic of Korea, the implementation shall be made in such a way.



Article 16 (Reply on Result)

(1) If an entrustment made by a foreign country is one pertaining to service, the head of the court which has accepted the entrustment, shall send to the foreign court a certificate on the result of the service, and if it concerns an entrustment pertaining to an examination on evidence, the judge who has accepted the entrustment shall send to the foreign court, a protocol specifying the inquiry of witness or the result of other examinations on evidence, or a certificate specifying the reason why the examination on evidence was impossible, respectively: Provided that in a case where the foreign court requests a reply made in a specified way, if the way is not contrary to any law of the Republic of Korea, it shall be made in such a way.

(2) The provisions of Article 6 shall apply mutatis mutandis to a case where the documents are sent under paragraph (1).



Article 17 (Supreme Court Regulations)

The disbursement and redemption of the expenses needed for judicial cooperation, and other matters necessary for enforcing this Act, shall be prescribed by the Supreme Court Regulations.


ADDENDUM <Act No. 4342, Mar. 8, 1991>

This Act shall enter into force on the thirtieth day following the date of its promulgation.

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