[Korean Law Insights] Lawsuits in U.S. Courts Regarding Korean Assets
- K-Law Consulting_Administration
- Aug 30, 2024
- 3 min read
Updated: Feb 13
[Published on August 27, 2024 edition of the "Korean Law Insights" column in the Korea Daily’s Economic Expert Section]
Pre-Action Provisional Measures (Provisional Seizure & Injunctions) Are Crucial
Provisional Measures from Korean Courts Allow Lawsuits in U.S. Courts
Before initiating a lawsuit, most people inquire whether they can win. However, equally important is the "possibility and ease of enforcement." If, after spending a lot of time and money, you win a judgment, but the opposing party has no assets or enforcement is impossible, the victory is meaningless. Therefore, it is necessary to investigate the opposing party's enforceable assets while evaluating the likelihood of success in the lawsuit. It is essential to secure the opposing party's assets in advance by obtaining provisional remedies, such as an injunction or provisional seizure, before filing the main lawsuit (e.g., for property division in divorce cases).
Provisional remedies, like injunctions or provisional seizures, are temporary court orders made until the final judgment or enforcement of the main lawsuit, known as "preservative measures." These measures can be applied even before filing the main lawsuit. For example, you can place a provisional seizure on the spouse's property before filing a property division claim in a divorce case. However, to prevent undue interference with the debtor's property rights, the debtor can request the court to order the creditor to file the main lawsuit. If no main lawsuit is filed within three years after a provisional remedy is granted, the debtor can apply for its cancellation.
Regarding these provisional remedies, many Korean-Americans often ask how to proceed if they want to file a lawsuit in the U.S., but the opposing party’s assets are only in Korea, or if the opposing party has more assets in Korea. In such cases, it is necessary for the creditor to secure the debtor's Korean assets by obtaining a provisional remedy from the Korean court. Meanwhile, it might be more beneficial to file the main lawsuit in a foreign court.
In conclusion, it is possible to obtain a provisional remedy from a Korean court and then file the main lawsuit in a foreign court. Even if you plan to file the main lawsuit in a foreign court, you can first secure a provisional remedy from a Korean court. Of course, to enforce the foreign court’s judgment in Korea, you would also need to obtain an enforcement judgment from a Korean court. Despite this additional step, if filing the lawsuit in the foreign court is ultimately more advantageous, pursuing this course of action is feasible. For instance, in a divorce property division claim, if filing the lawsuit in a U.S. court is more favorable, you can first secure a provisional remedy from a Korean court regarding the opposing spouse's Korean assets, and then proceed with the property division claim in the U.S. court.
Additionally, as mentioned in a previous column, the requirements for having a foreign court’s judgment recognized for enforcement in Korea are intricate. If a U.S. court judgment does not meet these requirements, it could impact the provisional remedy in Korea. However, according to Korean court practices, the provisional remedy granted by the Korean court will not be affected by this. For example, whether the property division claim filed in the U.S. court can be enforced in Korea does not specifically impact the provisional seizure of the opposing party’s Korean assets.
Many Korean-Americans express concerns when a debtor disappears to Korea, leaving no assets in the U.S. but having assets in Korea. As stated earlier, not only can a foreign court judgment be enforced in Korea, but based on the lawsuit filed in the foreign court (even before it is filed), provisional remedies from the Korean court can also restrict the debtor's Korean assets. In such cases, it is advisable to take legal action as soon as possible.
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Jin Hee Lee/K-Law Consulting Korean Attorney
[Reference link in original Korean]
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