Korea-China Legal Cooperation A to Z: Complete Guide from Evidence Investigation to Document Service

1. Overview and Legal Foundation of Korea-China Judicial Cooperation

Civil judicial cooperation between South Korea and China has become increasingly important as economic exchanges between the two countries have become more active. Civil judicial cooperation is classified as follows:

• Broad sense: All international judicial cooperation
• Narrow sense: International judicial cooperation regarding service of documents and evidence taking

Legal Foundation Framework

The legal foundation for Korea-China judicial cooperation is as follows:

• Major Treaties
  • Korea-China Civil and Commercial Judicial Assistance Treaty (Concluded July 7, 2003, Effective April 27, 2005)
  • Hague Conference on Private International Law Multilateral Treaties
• Supplementary Laws
  • South Korea: International Civil Judicial Assistance Act, Civil Procedure Act
  • China: Civil Procedure Law and other domestic laws

Scope and Classification of Judicial Cooperation

Category	South Korea	China
Classification Method	Comprehensive approach	Binary classification
Scope	Document service, evidence taking, legal information provision	General judicial cooperation + Special judicial cooperation
General Judicial Cooperation	–	Service and evidence taking
Special Judicial Cooperation	–	Recognition and enforcement of court judgments

2. Korea-China Evidence Taking Cooperation

Basic Structure of Evidence Taking Cooperation

Evidence taking between South Korea and China operates under a dual treaty system:

• Applicable Treaties: Hague Evidence Convention + Korea-China Treaty
• Accession Timing: South Korea joined the Evidence Convention in 2010, after the Korea-China Treaty was concluded
• Common Principle: Both countries refuse to execute letters rogatory for pre-trial discovery procedures

This is because the civil litigation systems of both countries have different structures from the extensive evidence disclosure systems of Anglo-American legal systems.

Investigation Requests to Public Offices

Korea-China Treaty vs Hague Evidence Convention Comparison:

Item	Korea-China Treaty	Hague Evidence Convention
Public Office Investigation Requests	✓ Explicit provisions (Article 16(1), Article 17(3)(d))	✗ No separate provisions
Practicality	High	Limited
Availability	Directly available	Not possible

Practical Significance: The Korea-China Treaty includes more practical provisions that are effective for fact-finding requests to public offices.

Evidence Taking by Diplomatic and Consular Officers

Hague Evidence Convention Chapter 2 Structure:

1. Article 15: Evidence taking from nationals by diplomatic officers or consular officers
2. Article 16: Evidence taking from nationals of the receiving state or third countries
3. Article 17: Evidence taking by commissioners

Comparison of Reservations by Both Countries:

Country	Article 15	Article 16	Article 17	Result
South Korea	✓ Applied	✗ Excluded	✗ Excluded	Only nationals allowed
China	✓ Applied	✗ Excluded	✗ Excluded	Only nationals allowed

Connection with Korea-China Treaty:

• Article 24 Provision: One contracting party may conduct evidence taking from its nationals within the territory of the other contracting party through its diplomatic or consular officers

Privilege to Refuse Evidence Submission

Comparison by Treaty:

Treaty	Recognition of Refusal Privilege	Restrictions	Characteristics
Hague Evidence Convention Article 11	✓	Must be specified in letter rogatory or confirmed by requested authority	Restrictive
Korea-China Treaty Article 21	✓	No restrictions	Flexible

Assessment: Due to the nature of bilateral treaties, the Korea-China Treaty takes a more flexible approach and has higher practical utility.

3. Legal Information Provision Cooperation

Legal Information Provision under Korea-China Treaty

Legal Information Provision Procedure:

1. Requesting State Central Authority sends request
2. Requested State Central Authority receives request
3. Relevant laws and judicial practices information collection
4. Information provision and response

Scope of Information Provided:

• Relevant Articles: Treaty Article 3, Article 26
• Content Provided:
  • Information on laws of the requested state
  • Information on judicial practices
• Provision Conditions: Relevance to requesting state’s litigation procedures

Differences from Hague Treaties

Comprehensiveness Comparison:

Treaty Type	Legal Information Provision Rules	Characteristics
Korea-China Treaty	✓ Explicit provisions	Comprehensive judicial cooperation
Hague Service Convention	✗ No provisions	Specialized in service
Hague Evidence Convention	✗ No provisions	Specialized in evidence taking

Effectiveness Improvement Tasks

Current Limitations:

• Procedural Deficiencies: Lack of specific implementation procedures
• Low Utilization: Rarely used in practice
• Improvement Directions:
  1. Development of specific procedure manuals
  2. Establishment of online platforms
  3. Regular information exchange system establishment

4. Detailed Analysis of Korea-China Document Service Cooperation

Legal Foundation and Basic Principles of Service

Dual Treaty System:

• Applicable Treaties: Korea-China Treaty + Hague Service Convention
• Membership Status: Both South Korea and China are parties to the Hague Service Convention
• Scope of Application: Both treaties serve as legal foundation for service of judicial documents

Basic Principles:

• Service Method: Both countries adopt official service principle
• Procedural Structure: Service procedures through central authorities

Role of Central Authorities and Service Routes

Key Significance of Korea-China Treaty:

Treaty	Central Authority Role	Characteristics
Korea-China Treaty	Receiving + Transmitting authority	Dual role
Hague Service Convention	Receiving authority only	Single role

Practical Service Procedure (From South Korea to China):

1. Court of first instance requests service
2. Chief judge approval
3. Korean central authority (Court Administration Office) routing
4. Requested state central authority transmission
5. Relevant court in requested state executes service

Practical Limitations:

• Ministry of Foreign Affairs routing: Still required under Korean International Civil Judicial Assistance Act
• Procedural delays: Time consumption due to multi-stage routing

Scope of Extrajudicial Document Service

Differences by Applicable Treaty:

Document Type	Korea-China Treaty	Hague Service Convention
Judicial documents	✓ Applicable	✓ Applicable
Extrajudicial documents	✗ No provisions	✓ Applicable

Examples of Extrajudicial Documents:

• Contract-related: Payment demands, contract termination notices
• Real estate-related: Lease termination notices
• Others: demand letters, dunning notices, etc.

Practical Considerations: When extrajudicial document service is required, the Hague Service Convention must be used.

Restrictions on Simplified Service Methods

Simplified Service Options under Hague Service Convention:

• Article 8: Direct service on persons other than nationals by diplomatic officers or consuls
• Article 10:
  1. Service by postal channels
  2. Direct service between judicial officers
  3. Other simplified service methods

Restrictions by Both Korea and China:

Article	Content	Korea-China Application	Impact
Article 8	Direct service by diplomatic/consular officers	✗ Reserved	Not available
Article 10	Simplified service methods	✗ Reserved	Not available

Need for Improvement:

• Efficiency hindrance: Lack of speed in modern international transaction environment
• Cost increase: Service costs increase due to complex procedures

Application of Special Provisions in Service Convention

Key Articles:

Article 15 – Allowing Trial in Absence:

• Allows trial under certain conditions even when defendant is absent
• Trial may proceed even when certificate of service is not received

Article 16 – Relief for Default Judgment:

• Protection for defendants who received default judgments
• Provisions allowing appeals

Application Controversy and Solutions:

Treaty	Article 15 Provisions	Article 16 Provisions	Interpretation
Korea-China Treaty	None	None	Applicable (complementary interpretation)
Service Convention	Yes	Yes	Explicit application

Analysis of Actual Service Status

Treaty Selection Patterns by Both Countries:

• South Korea → China: Mainly uses Korea-China Treaty
• China → South Korea:
  • Past: Mainly used Service Convention
  • Since 2014: Concurrent use of Korea-China Treaty

Consulate Utilization Status:

Country	Own Consulate Utilization	Characteristics
South Korea	High	Active use of Korean consulates in China
China	Low	Rarely uses Chinese consulates in South Korea

5. Treaty Relations and Practical Considerations

Conflict Resolution Principles Between Treaties

Status of Conflict Provisions:

• Korea-China Treaty Article 29: Mutual non-interference provision
• Hague Service Convention Article 25: Conflict provision with same intent

Comparison of Interpretative Approaches:

Approach	Content	Advantages	Disadvantages
Priority Application Theory	Korea-China Treaty takes priority	Clarity	Rigidity
Complementary Theory	Complementary interpretation of both treaties	Flexibility	Complexity

Recommended Approach:

1. Application of complementary interpretation principle
2. Priority selection of judicial cooperation-friendly provisions
3. Pursuit of efficiency through teleological interpretation

6. Conclusion

K&P Law Firm has recent experience successfully performing document service according to the Korea-China Treaty in Korea-China commercial disputes.

K&P International Transaction and International Contract Key Services:

• International Contract Review and Drafting: Drafting and legal review of commercial contracts between Korea-China, Korea-US, Korea-Japan, etc.
• International Transaction Dispute Resolution: Cross-border dispute resolution through international arbitration and international litigation
• Overseas Investment Legal Advisory: Legal advisory for companies expanding to China and Southeast Asia regarding local entity establishment and operations
• International M&A: Legal services for overseas corporate mergers & acquisitions and joint ventures
• International Judicial Cooperation: Document service, certified mail delivery, etc.