In Search of the Optimal Tort Litigation System: Reflections on Korea's Civil Procedure through Inquiry into American Jurisprudence

243 Pages Posted: 11 Aug 2010

See all articles by Gyooho Lee

Gyooho Lee

Chung-Ang University School of Law

Date Written: May 1998


The goal of my dissertation is to improve Korean tort litigation in a way of reaching efficient outcomes from the standpoint of comparative law and economics. In order to do so, the first thing I have to do is to figure out which country has tort litigation mechanism distinct from Korea and to find out why the difference of Korean's attitude toward litigation as compared to that of America was created. From this perspective, this dissertation shifts its focus from legal rules per se to human behaviors affected by the rules. By comparing how individuals react to legal rules in the two countries, this dissertation intends to find out the effect of legal rules on individuals' behaviors. I employed law and economics methodology because the approach can be best carried out through economic analysis of law. In this regard, I argue that non-litigiousness in Korea resulted from remedial and procedural rules rather than from cultural factors or tort lawTo put it differently, my argument is that the Korean's litigation-phobia resulted from the mechanism of legal dispute resolution rather than from any cultural obstacle and that the result could be best explained from the perspective of law and economics. From this perspective, low litigation rates in Korea as compared to those in America mean that the regal structure of dispute resolution in Korea discourages litigants from filing lawsuits. The legal structure consists of three different but related aspects: substantive rules; remedial ones; and procedural ones. As mentioned earlier, this dissertation focuses on dispute resolution mechanism dealing with tort cases. The three elements of the mechanism are tort law, remedy, and adjudicatory process. In terms of substantive rules of tort litigation in both countries, I argue that tort law in both jurisdictions has little effect on the disparity of litigation. Ch III finds that ,despite structural differences of substantive rules in the two countries, they have same or similar functional effect from the instrumental as well as non-instrumental perspective.

From the noninstumentlists' perspective, I emphasized the similarity of function of substantive rules in both countries. Also, I applied professor George Fletcher's theory for an account of substantive rules' comparison because his theory matches the traditional rules of tort law in Korea, which are mixture of instrumental and non-instrumental perspectives. In other words, protection of an individual's interest or right often clash into the goal of social welfare in the law of torts in Korea.

From the instrumental perspective, I explained that the prevalent liability regime in the area of tort law in both countries is a regime of negligence rather than of strict liability. In our daily life, we may experience torts related to only care level. However, we can hardly get involved in torts related to activity as well as care level. That is why negligence regime, which concerns only care level, is a dominant liability rule relative to strict liability, which concerns activity as well as care level. With respect to remedy, Chapter IV examines scope of damages, attorney's fees system, and punitive damages. First, I find that the scope of damages in Korea is much narrower than one in America on the basis of the majority view in Korea. This finding accounts for why the scope of damages in Korea creates more settlements than one in America, resulting in the difference of litigation rates in the two jurisdictions. Second, in terms of attorney fees system, this chapter explains that the English Rule, under which the defeated party must bear both parties' litigation costs, is settlement-prone relative to the American Rule, under which each party must pay his own litigation costs. The explanation implies that shifting away from the American Rule to the English Rule creates more settlements than the American. Here, I point out that the attorney's fees system in Korea is a hybrid rule that exists between the English and American Rules. Thus, I assert that the attorney's fees system in Korea results in more settlements than the American Rule. Also, this Chapter accounts for punitive damages in America. Indicating that an award of punitive damages in America is available for highly negligent as well as malicious acts, I explain that punitive damages in America contribute to higher litigation rates than Korea, which lacks this device. In terms of procedural rules, I initially discusses discovery in AmericaKorea does not have discovery device. Explaining that proof-taking in Korea has incentive structure similar to discovery practice prior to 1938 promulgation of Federal Rules of Civil Procedure, I accounts for why discovery in America is litigation-prone system relative to the counterpart in Korea. Second, I turn my focus into burden of proof. In Korea, each party is usually required to prove that the truthful of his allegation is highly probable. This burden of proof standard is settlement-prone system relative to preponderance of evidence standard in America. Third, the Korean legal system does not have American class action device. As its counterpart, the Korean procedural rules provide "appointed party" rule. This appointed party rule is settlement-prone system relative to class action in America. In addition, in that that res judicata, collateral estoppel and appellate procedure have a significant bearing on the disparity of litigation rates in both countries, we discussed them in Chapter V.

Overall, in my disseration, I reach a conclusion that, in terms of tort litigation, the disparity of litigation rates in Korea and America resulted from remedial and procedural rules rather than from cultural factors or substantive rules.

Keywords: Tort litigation, law and economics, civil procedure, Korea, America

Suggested Citation

Lee, Gyooho, In Search of the Optimal Tort Litigation System: Reflections on Korea's Civil Procedure through Inquiry into American Jurisprudence (May 1998). Available at SSRN: or

Gyooho Lee (Contact Author)

Chung-Ang University School of Law ( email )

84 Heukseok-Dong
Seoul, 06974
Korea, Republic of (South Korea)

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