When a Korean party is involved in litigation abroad, the foreign court often needs to understand how Korean law operates — what courts have jurisdiction, what proceedings are already underway in Korea, and whether an order made by the foreign court can be recognised and enforced here. Providing that understanding in a form the foreign court can act on is what a Korean law expert opinion does.
This article explains what a Korean law expert opinion or affidavit for foreign court use involves, when it is needed, and how the process works.
What Is a Korean Law Expert Opinion for Foreign Court Use?
A Korean law expert opinion — sometimes called a legal opinion letter, expert statement, or, in common law jurisdictions, an affidavit of Korean law — is a formal written document prepared by a Korean lawyer setting out the applicable provisions of Korean law as they relate to a specific dispute. It is addressed to the foreign court and drafted in accordance with that court’s evidentiary requirements.
Where the foreign court requires a sworn statement, the document is executed as an affidavit: the Korean lawyer signs and takes an oath before a Korean notary public, who witnesses and seals the document. The notarised affidavit is then transmitted to the foreign lawyer for filing with the court.
The scope of the opinion depends on what the foreign court needs to know. In international family law disputes, this typically includes the structure of the Korean family court system, the statutory basis for divorce and ancillary relief under Korean law, the current status of any parallel Korean proceedings, and the conditions under which a foreign court order can be recognised and enforced in Korea.
When Is a Korean Law Expert Opinion Required?
Foreign courts in common law jurisdictions — including Australia, the United States, the United Kingdom, and Canada — treat foreign law as a question of fact. This means that Korean law must be proved by evidence, not simply asserted. A qualified Korean lawyer’s opinion, properly sworn and notarised where required, is the standard form of that evidence.
Situations in which a Korean law expert opinion is typically required include:
- International family law proceedings — divorce, custody, or property division cases in a foreign court where one party has assets, residence, or ongoing litigation in Korea
- Cases where a foreign court is considering whether to make orders affecting Korean proceedings or Korean-sited assets
- Applications for recognition or enforcement of a foreign court order where the enforcing court needs to assess whether a Korean court would recognise a reciprocal order
- Inheritance and estate proceedings where Korean law governs succession to Korean assets
- Commercial disputes where a contract governed by Korean law is being litigated abroad
The need for a Korean law opinion most commonly arises when Korean and foreign proceedings are running in parallel — a situation that requires careful coordination between the Korean and foreign lawyers involved.
What a Korean Law Expert Opinion Typically Covers
The content of each opinion is tailored to the questions the foreign court has raised or the foreign lawyer has identified. In a recent matter involving divorce proceedings before an Australian family court, the opinion addressed twelve specific questions across the following areas:
The Korean legal framework. The relevant statutes — including the Civil Act (민법), the Family Litigation Act (가사소송법), the Civil Procedure Act (민사소송법), and the Civil Execution Act (민사집행법) — and how they interact in a Korean divorce proceeding.
Jurisdiction of the Korean family court. Which court has jurisdiction over the Korean proceedings, how that jurisdiction is established, and the relationship between the district court and the High Court on appeal.
Procedural timeline. The typical duration of contested divorce proceedings in Korean courts, and the factors that affect the length of proceedings in a given case.
Status of current Korean litigation. A factual account of the Korean proceedings as they stand: the case number, the relief claimed, the hearing dates scheduled, and the stage reached. This part of the opinion requires direct knowledge of the Korean file.
Recognition and enforceability of foreign court orders in Korea. Under Article 217 of the Korean Civil Procedure Act, a final judgment or an adjudication having equivalent effect by a foreign court may be recognised in Korea if the statutory requirements are met, including proper international jurisdiction, due service or appearance, no violation of Korean public policy, and reciprocity or a substantially comparable recognition framework. Recognition and compulsory enforcement should be distinguished: compulsory enforcement in Korea generally requires an execution judgment under Articles 26 and 27 of the Korean Civil Execution Act before ordinary Korean enforcement measures can be taken. Where a foreign court is making orders that may need to be enforced in Korea — regarding property, custody, or support — this question is often central to the foreign proceedings.
Enforcement mechanisms under Korean family law. For certain family law obligations, the Family Litigation Act allows step-by-step compliance mechanisms, including performance orders (이행명령), administrative fines (과태료), and, where the specific statutory prerequisites are met, civil detention (감치). The availability of each measure depends on the type of obligation and the procedural history of the case. A foreign court considering the practical effect of any order it makes may need this explained.
The Notarisation Process
Where the foreign court requires a sworn affidavit rather than an unsworn legal opinion letter, the document is notarised in Korea before filing. The process is as follows.
The opinion is drafted in English and reviewed for accuracy against the Korean proceedings and statutes. Any documents exhibited to the affidavit — such as copies of Korean court documents — are prepared as numbered annexures. The Korean lawyer then appears before a Korean notary public (공증인가 법무법인), takes the prescribed oath, and signs the affidavit in the notary’s presence. The notary seals and certifies the document. The completed affidavit, together with its annexures as a single notarised bundle, is transmitted to the requesting foreign lawyer.
The legal basis for accepting an affidavit sworn before a foreign notary varies by jurisdiction. In Australian family court proceedings, for example, section 195 of the Federal Circuit and Family Court of Australia Act 2021 addresses affidavits sworn or affirmed for use in Division 2 proceedings, including affidavits made outside Australia. The exact witnessing, notarisation, and apostille requirements should be confirmed with the requesting foreign lawyer before execution.
Apostille certification may additionally be required depending on the jurisdiction and the nature of the document. This is confirmed with the requesting foreign lawyer before the document is finalised.
Who This Service Is For
This service is designed for foreign lawyers — not for individual litigants directly. It is most relevant where:
- A foreign law firm is acting for a Korean national or a party with Korean assets and needs authoritative Korean law input for the foreign court
- A Korean party is being represented by a foreign lawyer who needs to understand and present the Korean legal position
- Proceedings are running concurrently in Korea and abroad, and the foreign court needs to understand what the Korean court has done or is likely to do
The opinion is prepared in English as standard. Where the foreign jurisdiction requires it in another language, or where the requesting firm needs a Russian or Vietnamese version for a multilingual client, this can be accommodated.
Fees are quoted separately for each matter, as the scope of research and drafting varies considerably depending on the questions raised. Preparation of an affidavit for foreign court use is treated as a separate engagement from any ongoing Korean litigation retainer.
Enquiries
If you are a foreign lawyer working on a matter that involves Korean law and requires a formal expert opinion or sworn affidavit, we are glad to discuss the scope and process. Initial enquiries can be sent by email or KakaoTalk — whichever is more convenient.