From
The Guidebook of the Patent Court
Videoconference for Oral Hearing
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The
First Remote Videoconference Hearing
between Seoul Central District Court and Jeju District
Court
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The new Civil Procedure Act allows implementation of
videoconference (VC) hearing of trials from September 30, 2016, enabling
witnesses and assessors to provide testimony without making appearance to the
courtroom.
Ÿ
The VC hearing can be efficient for witnesses or assessors
who have difficulties in making appearance to the courtroom due to long geographical
distance or transportation complexities, or who are under difficult situation
to face the litigation party in person.
However, parties to the trial (plaintiff and defendant) must still be
present at the courtroom.
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Witnesses who wish to provide testimony via the VC
may go to the VC Hearing Room in the nearest court from his/her place of
residence. Assessors are allowed to
use videoconference equipment with internet connection at the place of
his/her office or residence, as well as using the VC Hearing Room of a court.
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The information communication network between the
trial courtroom and VC Hearing Room of another court or between the courtroom
and assessors’ offices allows the trial panel to look at the faces of witness
and assessor, and the witness and assessor to watch the trial panel and
parties on the VC screen during the proceeding.
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Following the revision of the Act, first VC hearing
took place on November 16, 2016 between Seoul Central District Court - where
the trial was conducted - and Jeju District Court’s VC Hearing Room.
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The VC hearing is an exemplary case of effective using
the information communication technology (ICT) to overcome the geographical
inconvenience of witness living in Jeju Island to appear in the courtroom in
Seoul.
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The high-performance VC hearing system enabled: (1) a
realistic presence of the witness through instant two-way communication,
creating an ambience as if the hearing took place in the same courtroom; (2) the
trial panel to check the facial expressions on the witness with
high-definition video transmission; and (3) to check the authenticity of
documents shared through the record viewer on e-Court system.
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The Korean courts plans to promote the use of
videoconference hearing to reduce socioeconomic cost for witnesses living in
remote locations to appear in courtrooms and to facilitate obtaining oral
statements from professionals such as medical doctors and architects who are
too busy to appear in courtrooms and preferred providing written statements.
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n Purposes
As there
have been many witnesses who can hardly appear at courtrooms for witness
examination due to health and occupational issues, trial courts were faced with
difficulties in summoning witnesses for examinations, causing delays in setting
hearing dates for many witness examinations. There also were no legal backgrounds to individually
examine civil case witnesses in separation from the litigation parties unlike criminal
case defendants. Thus, the Civil
Procedure Act was revised and came into effect on September 30, 2016 to provide
legal grounds and procedures to hold remote videoconference hearings for
witnesses and assessors.
n Expected Outcome
The
remote videoconference hearing system is expected to effectively produce the
following outcomes:
1. Contribute
to having comprehensive fact-finding proceedings through effective and thorough
evidence examinations by preventing delays or postponements in setting trial
dates;
2. Provide
appropriate support measures for witnesses who face difficulties to appear in
courtrooms or need to be examined in separation from the parties, and reduce
socioeconomic cost on witness’s long distance trip to the courthouse; and
3. Reflect
the opinions from dominant experts residing in foreign countries, based on
effective judicial cooperation between the Korean and foreign judiciaries.
The Patent Court published a Decision in English on August 17, 2017
The Korean Patent Court started a new procedure for oral arguments in English. Parties may argue in English without translators.
Furthermore, the Patent Court published a Decision in
English. The original decision is in Korean but the English version was officially
prepared by the Patent Court. This is the first one and the Patent Court will
publish their decisions in English regularly for noteworthy cases.
Link: The Patent Court 2016Heo7695 Decision in English
The Patent Court Hears Oral Arguments of Infringement cases and Patent Validity cases at the same time
In patent and utility model cases, a panel of three judges reviews the records and a technical advisor provides a detailed presentation on technical matters to the panel. Absent special circumstances, a case proceeds to an intensive trial without a pre-trial hearing. Patent and utility model cases that involve specialized technical matters and complicated issues that are difficult to understand, may proceed to a pre-trial hearing. A trial date is generally set for design and trademark cases without a pre-trial hearing because the subject matter and issues in many design and trademark cases are relatively simple compared to those of patent and utility model cases. A presiding judge conducts the trial, and requests the parties to provide detailed presentation on technical matters, using various multi-media devices, real products, and models. A presiding judge also examines evidence such as documents and witnesses. Through these procedures, technical matters are reviewed in depth. In principle, technical advisors may participate in the trial.
Practice on Final Appeal to the Supreme Court in Korea
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.