Litigation

WINS & CO Law Firm has seasoned professionals with extensive experience across all areas of litigation, including civil, criminal, family, administrative, and patent cases, working together to resolve your legal concerns.

While litigation has become increasingly complex and large-scale in recent years, there is a growing demand for attorneys who can respond swiftly and handle cases as if they were their own. Furthermore, as the legal environment has evolved, establishing the facts of each case has become an increasingly critical aspect of litigation.

WINS & CO Law Firm begins by accurately establishing the facts, guiding you to minimize any margin of error, and effectively resolves even rare or uncommon types of litigation.

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Practice Details

Civil Litigation

The parties are the plaintiff and the defendant. The plaintiff is the party asserting a right, while the defendant is the opposing party.

Provisional remedies are measures that can be taken before or after filing a lawsuit to secure assets in advance. These include "provisional seizure" (gaapryu) and "provisional disposition" (gacheobon).

Although in theory, provisional seizure and provisional disposition do not require the same level of proof as in the main civil action (referred to as "prima facie showing"), in practice, it is advisable to prepare evidence at a level close to that of a full trial. Provisional remedies require the provision of security; if sufficient evidence is presented, the court may allow a "surety bond deposit," enabling security at a low cost. However, if the court determines that proof is insufficient, it may order a cash deposit of the full amount claimed.

The flow of a main civil action and its enforcement procedures can be illustrated as follows.

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Criminal Litigation

During the investigation phase, the dispute is between the complainant and the suspect (the accused).

Once an indictment is filed and the trial proceedings begin, the suspect becomes the "defendant" (not to be confused with the civil "defendant"), and the complainant (victim) becomes a witness who may be examined and, when necessary, has the right to make statements during the trial.

In trial proceedings, the defendant contests against the prosecutor, not the complainant (victim).

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Family Litigation

Family litigation is governed by the Family Litigation Act and covers cases arising under family law and inheritance law of the Civil Code. Because family litigation involves clearly provable family relationships, consensual agreements or uncontested facts through admission during proceedings are restricted, and the court exercises strong ex officio authority. As a result, the process of establishing facts and evaluating evidence differs significantly from civil litigation. However, the general trial procedures follow the Civil Procedure Act.

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Administrative Litigation

While there is a separate Administrative Litigation Act, the procedures are fundamentally similar to those under the Civil Procedure Act. Academically, there are questions about whether the suit should be brought against the agency or its head. It is also worth noting the institution of "circumstantial judgment" (sajeong panggyeol), which allows the court to dismiss a claim even when the plaintiff should prevail, on grounds of public order or other reasons.

In some cases, administrative appeals must be exhausted before filing suit, in which case the administrative appeal must be filed first.

Tax litigation also falls within the scope of administrative litigation, requiring a prior administrative appeal through the Tax Tribunal. Similarly, patent litigation requires prior proceedings through the Intellectual Property Trial and Appeal Board (IPTAB).

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Constitutional Litigation

The Constitutional Court Act serves as the governing law for constitutional proceedings. There are five types of constitutional adjudication, and except in special circumstances, general procedures largely follow the Civil Procedure Act.

1. Constitutional Review of Statutes - During court proceedings, a court refers a statute to the Constitutional Court on the grounds that it violates the Constitution.
2. Impeachment - Primarily follows the procedures of criminal procedure law.
3. Dissolution of Political Parties - Does not apply other statutes by analogy.
4. Competence Dispute - Primarily follows the Administrative Litigation Act.
5. Constitutional Complaint - Primarily follows the Administrative Litigation Act. In particular, when a statute directly and currently infringes on an individual's fundamental rights outside of court proceedings, a constitutional complaint may be filed instead of a constitutional review of statutes.

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Corporate and Other Entity Litigation

Corporate litigation refers not to disputes arising from business operations, but to lawsuits involving defects in internal decision-making processes, such as shareholders' meetings.

A corporation is a type of "juristic person" (beop-in) — a fictitious legal personality created based on capital — specifically defined under the Company Law provisions of the Commercial Act. These include five types: general partnership companies, limited partnership companies, stock companies (corporations), limited liability companies, and limited liability partnerships.

Other types of entities include civil law associations and foundations under the Civil Code, and "special entities" such as law firms under the Attorney-at-Law Act. However, most special entities are structured to follow the characteristics of either a company under commercial law or an entity under civil law.

The most critical internal decision-making process of a company or entity is the shareholders' meeting or members' meeting. Because decisions made by a weighted quorum can have significant effects, such as amending the articles of incorporation, highly sensitive legal issues arise concerning the qualifications of shareholders or members and related quorum requirements. These give rise to lawsuits such as actions to rescind, nullify, or confirm the non-existence of resolutions, as well as special proceedings like shareholder derivative actions.

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Patent Litigation

Patent litigation refers to all litigation concerning intellectual property such as patents and trademarks, and is governed by the trial and litigation provisions of the Patent Act, Trademark Act, and other relevant statutes. The Patent Act establishes the Intellectual Property Trial and Appeal Board (IPTAB), which oversees: (1) cancellation petitions for patents and utility models, and (2) trials and retrials concerning patents, utility models, designs, and trademarks. A decision from the IPTAB must be obtained before filing an action challenging a patent cancellation decision or trial decision with the Patent Court.

Lawsuits seeking injunctions against infringement based on patent or trademark rights are general civil actions, and are filed with the court having jurisdiction under Article 24 of the Civil Procedure Act. The same applies to trade secret protection and unfair competition cases.

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Special Litigation

Among the various types of litigation, there are several special categories. These include not only litigation in specialized fields, but also cases with unique procedural structures, such as formal adversarial proceedings where the parties are nominally adverse but do not actually contest each other.

Formal Adversarial Structure

Partition of co-owned property actions and preliminary judgments for partition of co-owned land formally have a plaintiff and a defendant, but the parties are not truly adverse. Instead, such cases bring the matter to court so that the court can achieve a fair outcome for all parties, or where the law requires a specific party structure.

Special Fields or Special Structures

Litigation in areas such as medical malpractice or construction disputes requires specialized knowledge in those fields and the ability to interpret specialized documents such as medical records. Attorneys develop expertise through repeated experience in these areas.

Subrogation actions and fraudulent conveyance actions (paulian actions) involve multiple parties and complex creditor-debtor relationships, requiring precise identification of the parties and the target claims. In particular, when subrogating ownership preservation or transfer registrations for land, it may be necessary to locate parties, which can be time-consuming. Fraudulent conveyance actions may emerge during case analysis, and swift response is especially important when statute of limitations issues arise in distribution objection cases.

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Arbitration and Other Alternative Dispute Resolution (ADR)

Alternative dispute resolution mechanisms, such as arbitration, can be freely agreed upon by the parties, but in some cases, legislation directs parties toward arbitration procedures. For example, medical dispute mediation and the so-called "Lemon Law" are cases in point. The Lemon Law, codified in the Automobile Management Act, allows consumers to request refunds when certain conditions regarding vehicle defects are met. The relevant statute provides for an arbitration committee, enabling the arbitration process when available.

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