The
losing party in an appeal proceeding of the second instance may again appeal
the decision of the appeal court to the Supreme Court. The notice of appeal to
the Supreme Court must be filed with the appeal court within 14 days from the
receipt date of the high court decision. That is the deadline which is not
extendible. The court of appeal will send the dockets of the case to the
Supreme Court.
The
Supreme Court dockets the case and order the petitioner to submit a final
appeal brief within 20 days from the receiving date of the court order. The
period cannot be extended and the case will be dismissed if the final brief has
not been filed within the period.
The respondent
(opposing party) will be served the final brief the Supreme Court, and then can
submit a rebuttal brief within 10 days of the date of the service. By having submit
each brief by both parties, official procedures of briefing have been finished.
However,
it is common for parties to submit supplemental briefs after that stage. In
principle, the Supreme Court is not required to consider them. In practice, the
Supreme Court may take into their consideration some arguments from
supplemental briefs in case the arguments are within the appeal brief and the rebuttal
brief. If the arguments from supplemental briefs are new, out of the scope of
the appeal brief or the answer brief, the Supreme Court will not review them
and may not consider as relevant and legal arguments.
After
briefings, the Supreme Court will review the final brief of the petitioner and
the rebuttal brief of the respondent, and will decide whether the case will be
fully reviewed by a panel of 4 justices.
The scope
of appeal to the Supreme Court in Korea is limited to legal issues. Parties may
not appeal facts and may not submit any evidences to the Supreme Court. Accordingly
the Supreme Court reviews only a matter of law and in case the appeal is based
on factual errors of the low courts, the case will be dismissed within 4
months.
Even
though the appeal is directed to legal errors of the low courts, due to the
excessive number of appeals to the Supreme Court, the Supreme Court can dismiss
the appeals if the decision follows the statutes and precedents. It is such a gate
keeping quick review process called a refusal of further consideration in the
Supreme Court.
After
that stage, a panel of 4 Justices will fully review the appeal case. Or all
members of 14 Justices in the Supreme Court may decide the issue through en
banc reconsidering the case. Such a full review will takes about 1 and half
years or 2 years.
The
Supreme Court has given deference to the decisions of the High Courts, and
therefore we can see only about 5% of winning rate among final appeal cases to the
Supreme Court. The Korean patent court plays the final decision maker as a
matter of practice like the CAFC in the U.S.
