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Victim and Assailant Involved with Violence and Injury
Summary of Civil Procedures, Etc.
Summary of Civil Procedures, Etc.Suppose no settlement has been reached on medical treatment expenses and compensation between the victim and assailant of violence or injury cases. In this case, the victim may file a civil conciliation, a trial of small claims, or a civil procedure to receive such costs.
※ However, the civil affairs procedure shall no longer proceed once the victim and assailant have agreed on the victim’s compensation. If the victim proceeds with the civil affairs procedure even after receiving settlement money, the assailant may respond with the agreement on settlement as evidence.
- Suppose the assailant refused to provide the victim with medical treatment costs and compensation, even though the victim’s claim rights have been acknowledged in the civil conciliation, the trial of small claims, or civil procedure. In this case, the proceedings may be forcibly executed.
Civil Conciliation Significance of Civil Conciliation- Civil conciliation refers to the judge or Conciliation Committee established in court listening to the claims of the disputing parties, reviewing various matters, including related data, and arranging and conciliating the parties to reach a settlement. By civil conciliation, disputes can be settled quickly and conveniently (Article 1 of the Civil Conciliation Act).
- The deadline of civil conciliations is promptly determined after application. Therefore, cases of conciliations are generally terminated on the deadline once and for all, and litigation expenses are lower than legal procedures implemented in a formal trial.
Civil Conciliation Procedures- Application of Civil Conciliation
· Civil conciliation starts when the party of dispute files conciliation to the court or the judge hearing the case sends it forward for conciliation (Articles 2 and 6 of the Civil Conciliation Act).
· Civil conciliation may be applied in writing or made orally (Article 5 of the Civil Conciliation Act).
- Notification of the Civil Conciliation Deadline
· The deadline of conciliation is notified to the parties of dispute upon application of civil conciliation (Article 15 of the Civil Conciliation Act).
· The parties of dispute shall attend on the day of the conciliation deadline to make statements before the judge responsible for civil conciliation. However, if exceptional circumstances occur, the parties may request their legal representatives or assistants to appear upon the approval of the judge responsible for civil conciliation (Article 6, paragraph 1 of Civil Conciliation Regulations).
- Effectiveness of Civil Conciliation
· Conciliation comes into effect after the parties reach an agreement and prepare a conciliation protocol.
· Meanwhile, the court may determine to take measures instead of civil conciliation for the following cases: ① If the respondent does not appear in court, ② If the parties fail to reach an agreement, or ③ If the court considers that the contents of the agreement made between the parties are inappropriate(Articles 30 and 32 of the Civil Conciliation Act).
Effectiveness of Civil Conciliation- Civil conciliation made between the parties is considered as effective as reconciliation in a trial (Article 29 of the Civil Conciliation Act).
- The following cases are considered to be as effective as reconciliation between the parties in the trial after they receive the written decision replacing the conciliation: ① If the parties do not file an objection within two weeks, ② If the applied objection gets dismissed, or ③ If the applied objection gets withdrawn (Article 34, paragraph 4 of the Civil Conciliation Act).
※ Effectiveness of Reconciliation in Trial
According to Article 220 of the Civil Procedure Act, reconciliation in trial is equivalently effective as the finalized sentence. This generates “executive force” to realize rights through the compulsory execution procedure. If reconciliation decisions have not been executed, rights may be realized through (indirect) compulsory execution by holding the statement of conciliation determination as a title of debt (refer to the second part of the Civil Execution Act).
- Meanwhile, new lawsuit procedures will proceed (Article 36, paragraph 1 of the Civil Conciliation Act), as the lawsuit will be deemed to have been filed in the following cases: ① If it is decided that the conciliation will not proceed (Article 26 of the Civil Conciliation Act), ② If it is finalized that the conciliation will not be validated (Article 27 of the Civil Conciliation Act), or ③ If filing for objection within two weeks on the decision to replace the conciliation (Article 34 of the Civil Conciliation Act).
Trial for Small Claims Definition of Trial for Small Claims- “Trial for Small Claims” refers to a system to file and implement lawsuits of small claims, in which it is simpler than other civil cases.
Scope of Cases with Small Claims- Cases with small claims refer to the first trial of civil cases executed in a district court or cases supported by the district court with claim amounts less than KRW 30 million, or a certain quantity of substitute payment, stocks, or bonds (Article 2, paragraph 1 of the Trial of Small Claims Act and the Main Text of Article 1-2 of the Regulation of Trial of Small Claims)
Procedures of the Trail for Small Claims- Filing the Trial for Small Claims
· Victims who may file a trial for small claims in writing or orally when intending to do so (Article 4 of the Trial of Small Claims Act and Article 3 of the Regulation of Trial of Small Claims).
※ The plaintiff is the person who files the trial for small claims, and the defendant is the plaintiff’s counterparty.
- Recommending the Defendant to Execute the Claim
· If a plaintiff files the lawsuit, the court may recommend the defendant to execute the claim as intended by the plaintiff by attaching a duplicate of a complaint or the certified copy of the filed report (Main Text of Article 5-3, paragraph 1 of the Trial of Small Claims Act).
· If the defendant objects to the recommendation of claim execution, the trial of small claims will proceed on the determined date for defense (Article 5-4, paragraphs 1 and 3 of the Trial of Small Claims Act).
※ In the following cases, the decision to recommend claim execution will be as effective as the finalized sentence: ① If the defendant did not raise an objection within the determined period, ② If the withdrawal of the filed objective has been confirmed, or ③ If the filed objection has been dismissed (Article 5-7, paragraph 1 of the Trial of Small Claims Act).
- Proceedings for Defense
· The proceedings for defense is generally held once. The judge looks into the evidence and interrogates witnesses by his/her official authority. If deemed justifiable, the judge may request evidence submitted in writing instead of standing trial (Article 7, paragraph 2, and Article 10 of the Trial of Small Claims Act).
- Pronouncement of Judgment
· The judgment may be pronounced after the proceedings for defense ends (Article 11-2 of the Trial of Small Claims Act).
※ For more information on procedures for trials of small claims, go to 『Trial of Small Claims』.
Civil Procedure Definition of Civil Procedure- Suppose the victim fails to receive relief for his/her damage by settlement, conciliation, trial for small claims, etc. In this case, the victim may file civil litigation to resolve the dispute as a last resort.
Civil Procedure Proceedings- Submission of Petition
· The party intending dispute resolution must prepare a petition and submit it to the court (Article 248(1) of the Civil Procedure Act).
· If the court finds that the stamp fee attached or paid to the complaint falls short of the amount specified in each subparagraph of Article 13(2) of the Act on the Stamps Attached for Civil Litigation, the court may withhold the acceptance of the complaint. Once the complaint submitted to the court is received, it is considered that the lawsuit has been filed at the time of submission (Article 248(2) and (3) of the Civil Procedure Act).
※ The plaintiff is the person who files the civil procedure, and the defendant is the plaintiff’s counterparty.
- Delivery of the Duplicate Petition Copy and Submission of the Written Reply
· After receiving the petition, the court shall deliver the duplicate petition copy to the defendant, and the defendant shall submit a written reply within 30 days after the delivery (Article 255, paragraph 1 of the Civil Procedure Act and Main Text of Article 256, paragraph 1 of the Civil Procedure Act).
· If the defendant does not submit his/her written reply or a written reply to confess, the lawsuit will be finalized according to the plaintiff’s petition (Article 257, paragraphs 1 and 2 of the Civil Procedure Act).
· If the defendant submits a written reply to deny the petition claimed by the plaintiff, the preparatory proceedings will be executed (Article 256, paragraph 4 of the Civil Procedure Act).
- Preparatory Proceedings for Oral Argument
· During the period of preparatory proceedings, the defendant submits the written reply, and the plaintiff responds against the written reply by preparing a written refutation (Article 280, paragraph 1 of the Civil Procedure Act).
· Also, inspection of evidence shall be completed before the due date for defense, such as preparing the written refutation, submitting evidence, applying for witnesses, applying for inspection/judgment, etc. (Article 282, paragraph 4 of the Civil Procedure Act).
- Due Date for Defense Preparation
· Suppose the basic written litigation is completed through defense preparation procedures. If the presiding judge determines that all the evidential data has been submitted and the issue emphasized through the review of records, he/she may designate the issue settlement date (date of defense preparation) for such disputes (refer to Article 282, paragraph 1 of the Civil Procedure Act).
- Date of Defense
· In the primary defense date (date for intense evidence inspection), the plaintiff and defendant and their witnesses go through a focused interrogation on dispute matters organized on the issue settlement date.Then, the judgment is soon pronounced after the interrogation (Article 287 of the Civil Procedure Act).
Effectiveness of the Civil Procedure- The judgment shall be confirmed if the defeated party does not object.
- Suppose the defeated party objects to the pronounced judgment. In this case, the party may submit a written appeal to the court within two weeks after the pronouncement.
Civil Procedure Expenses- The Defeated Party Shall Pay the Costs of Lawsuit
· In principle, the defeated party shall bear all costs of the lawsuit, including stamp duties, delivery fees, travel expenses, daily wages, lodging expenses of witnesses and experts, attorney fees, etc.
· However, suppose the party failed to comply with submitting the required data or appearing on time, or the lawsuit was delayed because of the party. In such cases, the winning party may bear some or all of the costs of the lawsuit (Articles 99 to 102 of the Civil Procedure Act).
- Attorney Fees Calculated as Part of the Costs of Lawsuit
· Attorney fees paid or to be paid by the party (hereinafter “Attorney Fees”) are calculated as part of the costs of the lawsuit by the remuneration criteria (Attached Table of the Regulations on the Calculation of Legal Fees of Litigation Costs) according to the claimed value. Even if the party wins the case, it shall bear all costs exceeding attorney fees calculated as costs of the lawsuit (Article 109, paragraph 1 of the Civil Procedure Act and Article 3, paragraph 1 of the Regulations on the Calculation of Legal Fees of Litigation Costs).
· Even if multiple attorneys defended the party in court, attorney fees are calculated as part of the costs of the lawsuit for only one attorney (Article 109, paragraph 2 of the Civil Procedure Act).
· Attorney fees to calculate as part of the costs of the lawsuit shall be 1/2 of costs calculated under the Regulations on the Calculation of Legal Fees of Litigation Costs according to the claimed value within the scope of the remuneration payment amount for the following cases: If the case is judged with or judged without arguments or defense, as the defendant made a full confession, or if determined to recommend the defendant execute the claim (Article 5 of the Regulations on the Calculation of Legal Fees of Litigation Costs).
· Suppose the court deems it extremely unjust to pay the full attorney fees calculated as part of the costs of the lawsuit. In this case, the court may considerably reduce the amount (Article 6, paragraph 1 of the Regulations on the Calculation of Legal Fees of Litigation Costs).
· Suppose the court deems the attorney fees calculated as part of the costs of the lawsuit to be extremely low when considering a higher degree of necessity to appoint a legal representative due to features of the lawsuit, attorney fees actually paid by the party, etc. In this case, the court may increase the remuneration amount up to 1/2 of the above attorney fees, if requested by the party (Article 6, paragraph 2 of the Regulations on the Calculation of Legal Fees of Litigation Costs).
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