Cost and Fee Allocation Rules in Korean Civil Procedure

Korea is one of the most litigation-prone societies on earth. The overall increase of court filings in civil cases in Korea is the result of external costs which are borne by the parties from outside the courts and internal costs which the parties generate as they directly utilize the courts. The external costs may include the increase of the number of disputes resulting from the rapid growth of Korean economy and the increasing weakness of dispute resolution mechanisms such as families, churches, and neighborhoods. The internal costs may include litigation costs. In this regard, this Article will mainly explore costs and fees borne by both parties as an effort to improve Korean civil procedure by eliminating frivolous lawsuits and encouraging meritorious ones. At the outset, the Article explores the basic rules and their exceptions and modifications as to who pays fees and costs in a lawsuit. Secondly, the Article explains fee and cost allocation rules which encourage or discourage litigation. In the third place, the Article delves into the determination of fees and costs incurred by both parties to a lawsuit. Afterwards, the Article discusses special Issues including success-oriented fees, sale of claims, class actions, and litigation insurance in terms of fee and cost allocation rules. In Conclusion, I propose that Filing Fees Act in the context of civil procedure be incorporated to the Act on Costs for Civil Procedure, and Filing Fees Rules for civil procedure and Rules regarding Attorney Fees included in Litigation Costs be incorporated to Rules of Costs for Civil Procedure. Afterwards, I make some comments on contingent fee arrangements as follows: (i) that contingent fee arrangements should not be permitted in criminal cases in Korea because those cases are related to public interests; and (ii) that contingency fee arrangements for domestic relation cases should not be allowed because it can encourage the dissolution of family relation. In addition, the Article points out that pro se actions can encourage a court to heavily rely on appropriateness in the concrete rather than legal certainty. In other words, appropriateness in the concrete sometimes preempts legal certainty in Korea because applying law by the court is limited by pro se litigation. The Article goes on to mention that this problem will be somewhat solved by the legal aid, the increase of the number of attorneys, and legal service insurances

Civilizing American Civil Justice: International Insights

In 1776, when Americans declared independence from Britain, they also declared their rights. Their declarations of rights count “open courts” as among the best means for constitutional development. Open courts should secure to every man, without regard to wealth, a just remedy for every wrong suffered, according to the law of the land, by fair and speedy procedure. Since 1776 Americans have invested heavily in creating open courts. They have been disappointed by returns that fall “far short of perfection” (Maurice Rosenberg). They have found reform to be an “unending effort to perfect the imperfect” (Jay Tidmarsh). That Americans have built on the imperfect, i.e., that they have looked only to the system that they have, explains their disappointing results. Contemporary critics can diagnose disorders, but cannot contribute cures known to work. Reformers must imagine how proposed new methods might work; they have no guide to ways proven to work. Elsewhere in the world there are civil justice systems that work better. American reformers need not imagine the unproven; they can study the proven. Yet contemporary reformers have not done so. They have foregone international insights. Why? Those better-functioning foreign systems are in non-English speaking countries. Their civil law methods seem distant from American common law practices. This book is intended to make our three systems of civil justice, the German and the Korean, more familiar and less foreign to each other. It demonstrates that civil processes in Germany and in Korea are closer to American understanding than Americans assume. German and Korean civil justice values are familiar; their means of implementing those values are known and often practiced in America. Far from fearing foreign processes, American reformers should find them fonts of tested ideas. Ten Points for Civil Procedure Reform that Promote Justice that is Civilized: 1) Legal rules seek justice through statutes; 2) Civil justice is accessible independent of wealth; 3) Those in right are not burdened with high litigation expenses; 4) Judges are professionals; 5) Trusted institutions coordinate civil justice; 6) Jurisdiction is determined without litigation; 7) Parties tell courts about their disputes; 8) Judges work with parties to prepare cases for decisions according to law; 9) Judges oversee taking evidence; 10) Courts base their judgments on law and explain them

Euro-Korean Perspectives on the Use of Arbitration and ADR Mechanisms for Solving Intellectual Property Disputes

The complexities of international intellectual property litigation (including jurisdictional issues, choice of law, lis pendens, and the recognition and enforcement of foreign judgments) contribute to explain why arbitration and alternative dispute resolution systems constitute an attractive method for solving intellectual property disputes. At a time when the European Union has created a new patent court system (as a result of the recent adoption of the European Patent with Unitary Effect and of the Agreement on a Unified Patent Court signed in February 2013) which will include the setting up of a new patent arbitration and mediation center, it is critical that this new institution shall take into account the best practices and the experience developed in these fields in other parts of the world, particularly in Korea which has gained considerable experience on these issues. On this basis, the goal of this article is to present the recent developments relating to the use of arbitration and alternative dispute resolution mechanisms for solving intellectual property disputes in Korea and in Europe from a comparative perspectiv

International Law Association\u27s Guidelines on Intellectual Property and Private International Law ( Kyoto Guidelines ): Applicable Law

The chapter “Applicable Law” of the International Law Association’s Guidelines on In­tellectual Property and Private International Law (“Kyoto Guidelines”) provides principles on the choice of law in international intellectual property matters. The Guidelines confirm the traditional principle of the lex loci protectionis for the existence, transferabil­ity, scope and infringement of intellectual property rights. The law applicable to the initial ownership of registered rights is governed by the lex loci protec­tionis whereas the law of the closest connection is applied to determine the ownership of copyright. For contracts, freedom of choice is acknowledged. With regard to ubiquitous or multi-state infringement and collective rights management in the field of copyright, the Guidelines suggest innovative solutions. Finally, the chapter contains a Guideline on the law applica­ble to the arbitrability of disputes

Failures of American Civil Justice in International Perspective

American civil justice fails to meet the nation\u27s needs. America\u27s eighteenth century founders expected of the nation\u27s future civil justice system that everyone ought to obtain right and justice freely, without sale, completely and without denial, promptly and without delay. Few lawyers today would say that American civil justice fulfills the founders\u27 expectations. Some say that it is oppressive and unjust. Many have given up the goals that the founders set. America\u27s reformers have run out of ideas. They have no proven models for fixing what they know is broken. This book provides a comparative critical introduction to civil justice systems in the United States, Germany, and Korea. It shows shortcomings of the American system and compares them with German and Korean successes. The book shows foreign systems as a source of ideas that are proven to work. The book informs general readers as well as specialists.https://scholarworks.law.ubalt.edu/fac_books/1045/thumbnail.jp

Civilizing American Civil Justice: International Insights

In 1776, when Americans declared independence from Britain, they also declared their rights. Their declarations of rights count “open courts” as among the best means for constitutional development. Open courts should secure to every man, without regard to wealth, a just remedy for every wrong suffered, according to the law of the land, by fair and speedy procedure. Since 1776 Americans have invested heavily in creating open courts. They have been disappointed by returns that fall “far short of perfection” (Maurice Rosenberg). They have found reform to be an “unending effort to perfect the imperfect” (Jay Tidmarsh). That Americans have built on the imperfect, i.e., that they have looked only to the system that they have, explains their disappointing results. Contemporary critics can diagnose disorders, but cannot contribute cures known to work. Reformers must imagine how proposed new methods might work; they have no guide to ways proven to work. Elsewhere in the world there are civil justice systems that work better. American reformers need not imagine the unproven; they can study the proven. Yet contemporary reformers have not done so. They have foregone international insights. Why? Those better-functioning foreign systems are in non-English speaking countries. Their civil law methods seem distant from American common law practices. This book is intended to make our three systems of civil justice, the German and the Korean, more familiar and less foreign to each other. It demonstrates that civil processes in Germany and in Korea are closer to American understanding than Americans assume. German and Korean civil justice values are familiar; their means of implementing those values are known and often practiced in America. Far from fearing foreign processes, American reformers should find them fonts of tested ideas. Ten Points for Civil Procedure Reform that Promote Justice that is Civilized: 1) Legal rules seek justice through statutes; 2) Civil justice is accessible independent of wealth; 3) Those in right are not burdened with high litigation expenses; 4) Judges are professionals; 5) Trusted institutions coordinate civil justice; 6) Jurisdiction is determined without litigation; 7) Parties tell courts about their disputes; 8) Judges work with parties to prepare cases for decisions according to law; 9) Judges oversee taking evidence; 10) Courts base their judgments on law and explain them

Failures of American Civil Justice in International Perspective

American civil justice fails to meet the nation\u27s needs. America\u27s eighteenth century founders expected of the nation\u27s future civil justice system that everyone ought to obtain right and justice freely, without sale, completely and without denial, promptly and without delay. Few lawyers today would say that American civil justice fulfills the founders\u27 expectations. Some say that it is oppressive and unjust. Many have given up the goals that the founders set. America\u27s reformers have run out of ideas. They have no proven models for fixing what they know is broken. This book provides a comparative critical introduction to civil justice systems in the United States, Germany, and Korea. It shows shortcomings of the American system and compares them with German and Korean successes. The book shows foreign systems as a source of ideas that are proven to work. The book informs general readers as well as specialists.https://scholarworks.law.ubalt.edu/fac_books/1045/thumbnail.jp