Korea-China Judicial Cooperation A to Z: Complete Practical Guide from Evidence Collection to Document Service

Introduction: Importance and Current Status of Korea-China Judicial Cooperation

As economic exchanges between Korea and China have rapidly expanded, the necessity for judicial cooperation in legal disputes between the two countries has significantly increased. Civil judicial cooperation plays a crucial role in cross-border legal procedures and is classified in various ways according to its scope and nature.

Legal Foundation of Bilateral Judicial Cooperation

Korea-China judicial cooperation operates on the following legal foundations:

• Bilateral Treaties
  • Korea-China Civil and Commercial Judicial Cooperation Treaty (concluded in 2003, effective in 2005)
  • Establishment of comprehensive judicial cooperation framework
• Multilateral Treaties
  • Hague Conference on Private International Law treaties
  • Specialized regulations for specific fields
• Domestic Legal Basis
  • Korea: International Civil Judicial Cooperation Act, Civil Procedure Act
  • China: Civil Procedure Law, etc.

Systematic Classification of Judicial Cooperation Areas

Classification Criteria	Korean Approach	Chinese Approach
System Structure	Integrated perspective	Bifurcated classification
Included Areas	Service, evidence collection, legal information provision	General cooperation + Special cooperation
General Cooperation	–	Service and evidence collection
Special Cooperation	–	Recognition and enforcement of judgments

Legal Framework: Foundation of Bilateral Judicial Cooperation

Korea-China judicial cooperation operates under a complex treaty system, and it is crucial for practitioners to accurately understand the characteristics and scope of application of each treaty.

Structural Characteristics of the Treaty System

Unique Position of Bilateral Treaties

The Korea-China Treaty has the following special significance:

• Comprehensiveness: Includes service, evidence collection, and legal information provision
• Practicality: Customized provisions tailored to the circumstances of both countries
• Complementarity: Plays a role in complementing the limitations of Hague treaties

Relationship with Hague Treaties

Treaty	Specialized Area	Scope of Application	Characteristics
Hague Service Convention	Document service	Judicial/extrajudicial documents	Wide range of service options
Hague Evidence Convention	Evidence collection	Overall evidence investigation	Various evidence collection methods
Korea-China Treaty	Comprehensive cooperation	Overall judicial cooperation	Country-specific provisions

Evidence Collection Cooperation: Practical Application of Dual Treaty System

Basic Framework of Evidence Collection Cooperation

Evidence collection between Korea and China has a complex structure with multiple applicable treaties:

• Applicable Treaties: Korea-China Treaty and Hague Evidence Convention
• Accession Process: Korea’s accession to the Hague Evidence Convention (2010) came after the Korea-China Treaty (2005)
• Common Policy: Both countries reject letters rogatory for pre-trial discovery purposes

Special Significance of Investigation Requests to Public Offices

Comparison of Treaty Provisions:

Treaty	Public Office Investigation Provisions	Practical Applicability
Korea-China Treaty	✓ Explicit provisions exist (Articles 16, 17)	Directly applicable
Hague Evidence Convention	✗ No separate provisions	Difficult to utilize

Practical Importance: When fact-finding from public offices is necessary, utilizing the Korea-China Treaty is much more effective.

Evidence Collection through Diplomatic and Consular Officers

Structure of Chapter 2 of the Hague Evidence Convention:

1. Article 15: Evidence taking in respect of nationals
2. Article 16: Evidence taking in respect of nationals of the State of execution or third States
3. Article 17: Evidence taking by commissioners

Reservation Status of Both Countries:

Country	Article 15 Application	Article 16 Application	Article 17 Application	Actual Scope of Utilization
Korea	✓ Accepted	✗ Rejected	✗ Rejected	Limited to nationals
China	✓ Accepted	✗ Rejected	✗ Rejected	Limited to nationals

Complementary Provisions of the Korea-China Treaty

Significance of Article 24:

• Allows evidence taking from nationals through diplomatic or consular officers of one contracting party
• Similar effect to the Hague Evidence Convention

Recognition of Privilege Against Evidence Production

Approaches by Treaty:

Treaty	Recognition of Privilege	Procedural Requirements	Practical Features
Hague Evidence Convention Article 11	✓ Recognized	Must be specified in letter rogatory or confirmed by authorities	Procedural strictness
Korea-China Treaty Article 21	✓ Recognized	No special restrictions	Procedural flexibility

Practical Evaluation: Due to the nature of bilateral treaties, the Korea-China Treaty provides a more flexible and practical approach.

Legal Information Provision: New Areas of Mutual Cooperation

Establishment of Legal Information Provision System

Procedural Structure:

1. Request Stage: Requesting State’s central authority sends request
2. Receipt Stage: Requested State’s central authority receives request
3. Investigation Stage: Collection of relevant laws and practical information
4. Response Stage: Provision of collected information

Scope and Content of Provided Information

Treaty Basis Articles:

• Article 3: General cooperation obligations
• Article 26: Specific procedures for legal information provision

Available Information:

• Legal Information:
  • Content of written laws
  • Interpretation of laws
  • Related subordinate regulations
• Practical Information:
  • Court precedent trends
  • Practical operation of administrative agencies
  • Actual operation of legal procedures

Differences from Hague Treaties

Comparison by Treaty Type:

Treaty	Legal Information Provision	Nature of Treaty
Korea-China Treaty	✓ Explicit provisions	Comprehensive judicial cooperation
Hague Service Convention	✗ No provisions	Service-specialized
Hague Evidence Convention	✗ No provisions	Evidence collection-specialized

Challenges for Enhancing Effectiveness

Improvement Directions:

1. Standardized Procedures: Development of detailed practical manuals
2. Digital Platform: Establishment of online information exchange system
3. Regular Updates: Systematic regular information update framework

Document Service Cooperation: Procedures and Practical Issues

Basic System and Principles of Service

Dual Treaty System:

• Applicable Treaties: Korea-China Treaty and Hague Service Convention
• Membership Status: Both countries are parties to the Hague Service Convention
• Application Area: Joint regulation of judicial document service

Operating Principles:

• Service Method: Both countries commonly adopt official service system
• Procedural System: Central authority transmission system as basic framework

Development of Central Authority System

Innovative Contribution of the Korea-China Treaty:

Treaty	Central Authority Function	Innovation
Korea-China Treaty	Receiving + Transmitting authority	Dual function performance
Hague Service Convention	Receiving authority only	Single function

Practical Service Procedure (Korea → China):

1. Competent Court decides on service commission
2. Chief Judge approval procedure
3. Transmission through Korean Central Authority (Court Administration)
4. Delivery to Chinese Central Authority
5. Chinese Relevant Court executes service

Scope of Application for Extrajudicial Document Service

Differences in Treaty Application:

Document Classification	Korea-China Treaty	Hague Service Convention
Judicial Documents	✓ Applicable	✓ Applicable
Extrajudicial Documents	✗ Not specified	✓ Applicable

Practical Importance of Extrajudicial Documents:

• Contract-related: Demand letters, contract termination notices
• Real estate-related: Lease termination notices
• Other legal notices: Demand letters, dunning notices, etc.

Limitations of Simplified Service Methods

Simplified Options under the Hague Service Convention:

• Article 8: Direct service by diplomatic or consular agents
• Article 10:
  1. Service by postal channels
  2. Direct service between judicial officers
  3. Other simplified service methods

Restrictive Approach of Both Countries:

Article	Content	Korea-China Application	Practical Impact
Article 8	Direct service by diplomatic/consular officers	✗ Reserved	Cannot be utilized
Article 10	Simplified service methods	✗ Reserved	Cannot be utilized

Areas Requiring Improvement

• Efficiency Issues: Fails to meet the speed requirements of modern international transactions
• Cost Issues: Increased service costs due to complex procedures
• Time Issues: Extended periods due to multi-stage transmission

Application of Special Provisions of the Service Convention

Key Protective Clauses:

Article 15 – Permission for Default Proceedings

• Allows proceedings even when defendant defaults under certain conditions
• Permits proceedings even when certificate of service is not received

Article 16 – Relief from Default Judgments

• Protective measures for defendants who received default judgments
• Provisions guaranteeing right of appeal

Application Status by Treaty:

Treaty	Article 15 Provisions	Article 16 Provisions	Interpretation
Korea-China Treaty	No explicit provisions	No explicit provisions	Complementary application possible
Service Convention	Explicit provisions exist	Explicit provisions exist	Direct application

Analysis of Actual Service Status

Treaty Selection Patterns in Practice:

• Korea → China: Preference for Korea-China Treaty
• China → Korea:
  • Initially: Mainly utilized Hague Service Convention
  • After 2014: Parallel use of Korea-China Treaty

Comparison of Consulate Utilization:

Country	Own Consulate Utilization	Practical Features
Korea	Active utilization	Active role of Korean consulates in China
China	Passive utilization	Limited role of Chinese consulates in Korea

Practical Considerations: Treaty Selection and Utilization Strategies

Basic Principles for Resolving Treaty Conflicts

Conflict Prevention Provisions:

• Korea-China Treaty Article 29: Principle of mutual non-interference
• Hague Service Convention Article 25: Provision with same intent

Conflicting Interpretations:

Interpretation Method	Basic Approach	Advantages	Disadvantages
Priority Application Theory	Priority application of Korea-China Treaty	Legal clarity	Lack of flexibility
Mutual Complementarity Theory	Harmonious interpretation of both treaties	Practical flexibility	Complexity of interpretation

Recommended Approach in Practice:

1. Adopt mutual complementary interpretation as basic principle
2. Prioritize provisions favorable to promoting judicial cooperation
3. Maximize efficiency through teleological interpretation

Strategic Considerations for Treaty Selection

Future-Oriented Improvement Directions

Short-term Improvement Tasks:

• Procedural Simplification: Elimination of unnecessary transmission stages
• Digitalization: Introduction of electronic service methods
• Standardization: Preparation of unified forms and procedures

Long-term Development Directions:

• Treaty Amendment: Improvement of treaty provisions to match reality
• Technology Utilization: Enhanced efficiency using IT technology
• International Cooperation: Strengthening multilateral cooperation frameworks

Conclusion: Recommendations for Effective Judicial Cooperation

Judicial cooperation between Korea and China continues to grow in importance alongside the expansion of economic exchanges between the two countries. While the current dual treaty system has its respective advantages, continuous improvement is necessary for efficient utilization in practice.

Major Achievements and Significance

• Systematic Foundation Building: Completion of comprehensive judicial cooperation system
• Accumulation of Practical Experience: Building practical know-how through various cases
• Securing Legal Stability: Establishment of predictable procedures and standards

Future Tasks and Prospects

Recommendations for Practitioners

1. Careful Treaty Selection: Choosing optimal treaties according to case characteristics
2. Importance of Procedural Compliance: Ensuring legal stability through accurate procedural implementation
3. Thorough Preparation: Complete preparation of necessary documents and information
4. Expert Utilization: Utilizing expert consultation for complex matters

Korea-China judicial cooperation, as a key tool for resolving legal disputes between the two countries, is expected to continue developing into a more effective system through continuous development and improvement.