Approval of a judgement of a foreign court in Korea
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Supreme Court Decision 2018Da231550 Decided March 11, 2022 【Judgment of Execution】
【Main Issues and Holdings】[1] Method of determining whether the approval of a final and conclusive judgment rendered by a foreign court or a judgment acknowledged to have the same force (hereinafter “final judgment, etc.”) may give rise to a result being against sound
morals or other social order of the Republic of Korea When determining the requirements for recognition of a final judgment, etc. stipulated in Article 217-2(1) of the Civil Procedure Act, whether the stability or predictability of the international trade order as well as domestic circumstances should be considered (affirmative) and whether the approval of a judgment rendered by a foreign court can be denied for the simple reason that no Acts prescribing the same contents as the Acts applied in a judgment rendered by a foreign court exist in the legislative system of the Republic of Korea (negative)
[2] Where an act that was deemed as the cause of compensation for damage in a judgment rendered by a foreign court ordering compensation for damage exceeding the scope of compensatory damage belongs to the regulatory realm of an individual Act allowing compensation for damage in excess of the scope of compensatory damage in the Republic of Korea, whether the approval of the judgment rendered by a foreign court is markedly against the basic order of the Acts related to compensation for damage and thus can be seen to be impermissible (negative) In such a case, whether the approval of a judgment rendered by a foreign court can be denied on the sole basis of the fact that the foreign Acts applied in a judgment rendered by a foreign court contain the contents automatically deeming the specific multiples of the actual amount of damage as the final amount of compensation for damage (negative) and standard for determining whether a court should approve the whole or part of a judgment rendered by a foreign court ordering compensation for damage exceeding the scope of compensatory damage
【Summary of Decision】
[1] To permit the judgment of execution in relation to a final judgment rendered by a foreign court, etc., the requirements for recognition thereof should be satisfied. Article 217(1)3 of the Civil Procedure Act regulates that the approval of a final judgment rendered by a foreign court, etc. should not undermine sound morals or other social order of the Republic of Korea as a requirement for the approval of a final judgment rendered by a foreign court. Herein, whether the approval of a final judgment, etc. may give rise to a result being against sound morals or other social order of the Republic of Korea should be determined by examining the effect of the approval of a final judgment, etc. on basic moral convictions and social order that our domestic legal order intends to protect in light of the degree of relevance between the cases dealt with in such final judgment, etc. and those of the Republic of Korea when determining whether such final judgment, etc. should be recognized.
[1] To permit the judgment of execution in relation to a final judgment rendered by a foreign court, etc., the requirements for recognition thereof should be satisfied. Article 217(1)3 of the Civil Procedure Act regulates that the approval of a final judgment rendered by a foreign court, etc. should not undermine sound morals or other social order of the Republic of Korea as a requirement for the approval of a final judgment rendered by a foreign court. Herein, whether the approval of a final judgment, etc. may give rise to a result being against sound morals or other social order of the Republic of Korea should be determined by examining the effect of the approval of a final judgment, etc. on basic moral convictions and social order that our domestic legal order intends to protect in light of the degree of relevance between the cases dealt with in such final judgment, etc. and those of the Republic of Korea when determining whether such final judgment, etc. should be recognized.
Article 217-2(1) of the Civil Procedure Act prescribes that “[w]here final judgment, etc. on compensation for damage give rise to a result being markedly against the basic order of the Acts of the Republic of Korea or international treaties entered into
by the Republic of Korea, a court shall not approve the whole or part of relevant final judgment, etc.” This is a provision that is prepared to limit the approval of a judgment rendered by a foreign court to the proper extent where the contents of a foreign court’s judgment ordering compensation for damage exceeding the scope of compensatory damage in relation to Article 217(1)3 of the Civil Procedure Act reach an unacceptable extent in light of the basic principle, ideology, structure, etc. of the compensation system recognized in the Acts of the Republic of Korea or international treaties entered into by the Republic of Korea.
Moreover, when determining such requirements for recognition, the stability or predictability of the international trade order as well as domestic circumstances should be considered, and the approval of a judgment rendered by a foreign court should not be denied immediately for the simple reason that no Acts prescribing the same contents as the Acts applied in a judgment rendered by a foreign court exist in the legislative system of the Republic of Korea.
[2] The basic principle of the compensation system of the Republic of Korea was to return the victim, etc. back to the state before such damage arises by making up for the actual damage inflicted upon the victim, etc. With respect to compensation for damage caused by a prime contractor’s unfair act, compensation for damage exceeding the scope of compensatory damage to the extent not exceeding three times the actual damage was introduced to the “Fair Transactions in Subcontracting Act” for the first time in 2011 (Article 35). Subsequently, with regard to the illegal cartel conduct of business entities, a provision on compensation for damage exceeding the scope of compensatory damage to the extent not exceeding three times the actual damage was introduced to the “Monopoly Regulation and Fair Trade Act”, and, further, a provision allowing compensation for damage exceeding the scope of compensatory damage to the extent not exceeding three to five times the damage with respect to certain types of acts was introduced through the amendment of an individual Act in the areas such as personal information, labor relation, intellectual property, consumer protection, etc.
As such, the purpose of allowing compensation for damage exceeding the scope of compensatory damage in an individual Act is to inhibit the occurrence of unlawful acts and substantially compensate for the damage inflicted upon the victim through such compensation.
As above, in light of the compensation system of the Republic of Korea, which is based on compensatory damage in principle and allows compensation for damage exceeding the scope of compensatory damage depending on special circumstances corresponding thereto in certain areas through individual Acts, where an act that was deemed as the cause of compensation for damage in a judgment rendered by a foreign court ordering compensation for damage exceeding the scope of compensatory damage belongs to the regulatory realm of individual Acts allowing compensation for damage exceeding the scope of compensatory damage in the Republic of Korea, viewing that the approval of the judgment rendered by a foreign court is markedly against the basic order of the Acts related to compensation for damage and thus can be seen to be impermissible is difficult. In such a case, even if the foreign Acts applied in a judgment rendered by a foreign court contain the contents that the specific multiples of the actual amount of damage is automatically fixed as the final amount of compensation for damage, the approval of the judgment rendered by a foreign court cannot be denied on the sole basis of such contents and should be determined in consideration of the upper limit of the amount of compensation stipulated in the related Acts of the Republic of Korea.
In short, whether a court should approve the whole or part of a judgment rendered by a foreign court ordering compensation for damage exceeding the scope of compensatory damage should be individually determined after comprehensively considering the following circumstances: the relations between the corresponding judgment rendered by a foreign court and the Acts related thereto in the Republic of Korea; whether an act that was deemed as the cause of compensation for damage in the judgment rendered by a foreign court belongs to the realm of individual Acts allowing compensation for damage exceeding the scope of compensatory damage in the Republic of Korea; and if such act belongs thereto, how much difference exists between compensation for damage recognized in the judgment rendered by a foreign court and the contents prescribed by the above individual Acts, particularly, the upper limit of the amount of compensation, etc., on the premise of the basic principle, ideology, structure, etc. of the compensation system of the Republic of Korea.
by the Republic of Korea, a court shall not approve the whole or part of relevant final judgment, etc.” This is a provision that is prepared to limit the approval of a judgment rendered by a foreign court to the proper extent where the contents of a foreign court’s judgment ordering compensation for damage exceeding the scope of compensatory damage in relation to Article 217(1)3 of the Civil Procedure Act reach an unacceptable extent in light of the basic principle, ideology, structure, etc. of the compensation system recognized in the Acts of the Republic of Korea or international treaties entered into by the Republic of Korea.
Moreover, when determining such requirements for recognition, the stability or predictability of the international trade order as well as domestic circumstances should be considered, and the approval of a judgment rendered by a foreign court should not be denied immediately for the simple reason that no Acts prescribing the same contents as the Acts applied in a judgment rendered by a foreign court exist in the legislative system of the Republic of Korea.
[2] The basic principle of the compensation system of the Republic of Korea was to return the victim, etc. back to the state before such damage arises by making up for the actual damage inflicted upon the victim, etc. With respect to compensation for damage caused by a prime contractor’s unfair act, compensation for damage exceeding the scope of compensatory damage to the extent not exceeding three times the actual damage was introduced to the “Fair Transactions in Subcontracting Act” for the first time in 2011 (Article 35). Subsequently, with regard to the illegal cartel conduct of business entities, a provision on compensation for damage exceeding the scope of compensatory damage to the extent not exceeding three times the actual damage was introduced to the “Monopoly Regulation and Fair Trade Act”, and, further, a provision allowing compensation for damage exceeding the scope of compensatory damage to the extent not exceeding three to five times the damage with respect to certain types of acts was introduced through the amendment of an individual Act in the areas such as personal information, labor relation, intellectual property, consumer protection, etc.
As such, the purpose of allowing compensation for damage exceeding the scope of compensatory damage in an individual Act is to inhibit the occurrence of unlawful acts and substantially compensate for the damage inflicted upon the victim through such compensation.
As above, in light of the compensation system of the Republic of Korea, which is based on compensatory damage in principle and allows compensation for damage exceeding the scope of compensatory damage depending on special circumstances corresponding thereto in certain areas through individual Acts, where an act that was deemed as the cause of compensation for damage in a judgment rendered by a foreign court ordering compensation for damage exceeding the scope of compensatory damage belongs to the regulatory realm of individual Acts allowing compensation for damage exceeding the scope of compensatory damage in the Republic of Korea, viewing that the approval of the judgment rendered by a foreign court is markedly against the basic order of the Acts related to compensation for damage and thus can be seen to be impermissible is difficult. In such a case, even if the foreign Acts applied in a judgment rendered by a foreign court contain the contents that the specific multiples of the actual amount of damage is automatically fixed as the final amount of compensation for damage, the approval of the judgment rendered by a foreign court cannot be denied on the sole basis of such contents and should be determined in consideration of the upper limit of the amount of compensation stipulated in the related Acts of the Republic of Korea.
In short, whether a court should approve the whole or part of a judgment rendered by a foreign court ordering compensation for damage exceeding the scope of compensatory damage should be individually determined after comprehensively considering the following circumstances: the relations between the corresponding judgment rendered by a foreign court and the Acts related thereto in the Republic of Korea; whether an act that was deemed as the cause of compensation for damage in the judgment rendered by a foreign court belongs to the realm of individual Acts allowing compensation for damage exceeding the scope of compensatory damage in the Republic of Korea; and if such act belongs thereto, how much difference exists between compensation for damage recognized in the judgment rendered by a foreign court and the contents prescribed by the above individual Acts, particularly, the upper limit of the amount of compensation, etc., on the premise of the basic principle, ideology, structure, etc. of the compensation system of the Republic of Korea.
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