Product Liability 2009 - Arnold & Porter LLP
Product Liability 2009 - Arnold & Porter LLP
Product Liability 2009 - Arnold & Porter LLP
You also want an ePaper? Increase the reach of your titles
YUMPU automatically turns print PDFs into web optimized ePapers that Google loves.
Lee & Ko Korea<br />
practice, courts tend to give deference to the decisions of other<br />
similar cases rendered by another court.<br />
3.5 Can defendants claim that the fault/defect was due to the<br />
actions of a third party and seek a contribution or<br />
indemnity towards any damages payable to the claimant,<br />
either in the same proceedings or in subsequent<br />
proceedings? If it is possible to bring subsequent<br />
proceedings is there a time limit on commencing such<br />
proceedings?<br />
In a product liability suit, the manufacturer may seek<br />
indemnification from a third party for losses incurred due to such<br />
third party, or if such third party had contributed to the<br />
compensation liable by the manufacturer. In such case, the<br />
manufacturer would need to first file an indemnification suit against<br />
such third party, and then seek to combine the proceedings.<br />
However, if such proceedings cannot be combined, then the<br />
proceedings can be carried out separately. Also, the manufacturer<br />
may file an indemnification suit against such third party (or joint<br />
tortfeasor) after the product liability suit against the manufacture<br />
has been decided against the manufacturer. Such indemnification<br />
suit must be filed within 10 years from the date when the<br />
manufacturer paid the court ordered damages to the claimant.<br />
3.6 Can defendants allege that the claimant’s actions caused<br />
or contributed towards the damage?<br />
The PLA does not provide for provisions on contributory<br />
negligence of the claimant. However, under the Civil Act, in case<br />
the claimant’s actions caused or contributed towards the damage,<br />
then the amount of damage compensation may be reduced by a<br />
proportionate amount attributable to the claimant’s negligence.<br />
4 Procedure<br />
4.1 In the case of court proceedings is the trial by a judge or a<br />
jury?<br />
In Korea, trails are by judges only.<br />
4.2 Does the court have power to appoint technical specialists<br />
to sit with the judge and assess the evidence presented by<br />
the parties (i.e. expert assessors)?<br />
Upon the petition of either party or ex-officio, the court may appoint<br />
an expert possessing the required expertise and experience to<br />
provide his expert opinion in the form of a report to assist the judge.<br />
The expert will not be allowed to sit with the judge.<br />
4.3 Is there a specific group or class action procedure for<br />
multiple claims? If so, please outline this. Is the<br />
procedure ‘opt-in’ or ‘opt-out’? Who can bring such<br />
claims e.g. individuals and/or groups? Are such claims<br />
commonly brought?<br />
similar damages from a defective product, and common legal or<br />
factual issues. Specifically, the state, municipality governments, the<br />
KCA, certain consumer association or an enterprise may request or<br />
file for collective dispute mediation to the Mediation Commission<br />
(Article 68 of the FAC). If such request for collective dispute<br />
mediation is accepted by the Mediation Commission, then the<br />
Mediation Commission must inform the consumers or enterprises at<br />
least 14 days from the initiation of the collective dispute mediation<br />
procedure through proper channels such as public notice in the KCA<br />
website or in newspapers of nation-wide circulation. Through this<br />
public notice, the parties to the collective dispute mediation may be<br />
added. The Mediation Commission may nominate 1 or more persons<br />
among the parties of the collective dispute mediation suitable to<br />
represent the group’s interest. The Mediation Commission may, if the<br />
enterpriser accepts the results of the collective dispute mediation by<br />
the Mediation Commission, recommend a compensation plan for the<br />
consumers not being parties of the collective dispute mediation. If<br />
consumers being the parties of the collective dispute mediation file a<br />
lawsuit, then such consumers shall be excluded form the procedure.<br />
As abovementioned in question 1.2, if no agreement is reached as a<br />
result of the collective dispute mediation, or a party would not<br />
accept the results of the collective dispute mediation, then disputes<br />
shall go to court and be finally decided by the courts.<br />
4.4 Can claims be brought by a representative body on behalf<br />
of a number of claimants e.g. by a consumer association?<br />
A consumer association may not file a suit on behalf of consumers<br />
seeking compensation for damages derived from defective product.<br />
Under the FAC, however, certain consumer associations, the Korea<br />
Chamber of Commerce and Industry, the Federation of Small and<br />
Medium Business, Federation of Korean Industries, or Korea<br />
International Trade Association may file a lawsuit to courts<br />
requesting suspension or prevention of a certain action of an<br />
enterprise infringing consumers’ rights such as suspension or<br />
prevention of being sold defective products in the marketplace<br />
(Article 70 of the FAC). But the FAC does not allow the consumer<br />
associations or any entities above to file a lawsuit seeking<br />
compensation for damages derived from defective products.<br />
4.5 How long does it normally take to get to trial?<br />
Once a complaint has been filed with the court and the complaint is<br />
delivered to the defendant, the defendant is required to submit a<br />
response within 30 days of receipt thereof. Subsequently, several<br />
exchanges of briefs usually take place prior to the first hearing. The<br />
first hearing is usually scheduled 4 to 5 months from the filing of the<br />
complaint, but it varies on a case-by-case basis. Traditionally, in civil<br />
actions, the case at the court of first instance would take approximately<br />
8 to 10 months, approximately 6 to 8 months at the court of second<br />
instance, and 4 to 5 months at the Korean Supreme Court. However,<br />
in case of product liability suits, there are usually much more issues<br />
and fierce arguments between the parties than regular suits, therefore<br />
it would take a longer time to hear the judgment than regular suits. For<br />
example, a product liability case regarding tobacco was filed in 1999,<br />
but the court of first instance rendered its decision only in 2007.<br />
WWW.ICLG.CO.UK 207<br />
There is no legislation in Korea providing for class action in<br />
product liability suits. Even if a large group of consumers have 4.6 Can the court try preliminary issues, the result of which<br />
common cause of action for damages from a common defect of a determine whether the remainder of the trial should<br />
product, each of the consumers individually would need to be proceed? If it can, do such issues relate only to matters of<br />
claimants in product liability suits.<br />
However, the FAC provides for the collective dispute mediation<br />
law or can they relate to issues of fact as well, and if there<br />
is trial by jury, by whom are preliminary issues decided?<br />
procedure for a large number of consumers having identical or<br />
ICLG TO: PRODUCT LIABILITY <strong>2009</strong><br />
If the court decides that preliminary issues are needed to be tried<br />
© Published and reproduced with kind permission by Global Legal Group Ltd, London<br />
Korea
Change language