Litigation: How is hearsay treated under Korean law?

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Hearsay is the legal term that describes statements made outside of court or other judicial proceedings. With few exceptions, hearsay is not allowed as evidence in the U.S.

However, in Korea, hearsay evidence would be admissible and have probative value in court at least in civil proceedings if accepted by courts as evidence, and, therefore, hearsay is indistinguishable from any other evidence in how Korean courts treat evidence:

Under Korean law, hearsay refers to any matter experienced by a person which forms a basis for establishing certain fact and which is offered in court as evidence by any means other than direct testimony of the person at a legal proceeding.

Article 202 of the Civil Procedure Act provides that “The court shall determine the truth of the matters asserted pursuant to its free convictions, consistent with social justice and equity and keeping in line with principles of logic and experience and taking the whole purport of pleadings and the results of the evidence investigation into consideration.” This is so called “the principle of free conviction.”  That is, court judges are given total, free discretion to choose or throw out any evidence which come before them, or how much admissibility or value should be given to each evidence accepted.

So, under Korean legal system, it would be solely up to court judges who would exercise their free convictions on whether to accept certain hearsay in a case to the extent such exercise of free convictions does not violate the principle of logic and experience.

The Supreme Court of Korea stated in one case that the total denial of the admissibility of hearsay evidence in civil proceedings is in contravention of the principle of taking evidence (at the court’s sole discretion) (Supreme Court decision 67Da67; March 21, 1967) and also stated in another case that the date of purchasing real estate could be established by hearsay evidence even if such hearsay would contradict witness’ statements (Supreme Court decision 79Da395; December 26, 1979).

In sum, such hearsay evidence as government reports, any public statements by government or banking officials, government and bank website materials, scholarly reports, and bank reports would not be limited in terms of their admissibility or probative value in court.

According to views of the Supreme Court, once a court makes its decision to accept certain evidence having exercised its free convictions, it is only sufficient for the court to express the acceptance of the evidence, and the court is not required to give the basis of its decision for such acceptance (Supreme Court decision 96Da16247; June 28, 1996). In this connection, when a court makes its decision in a case and provides its opinion of the case, it would be difficult to identify from such opinion how much weight were given to any hearsay evidence submitted to the court (assuming that any such evidence was accepted by the court).