How to File Intervention in Civil Litigation in South Korea?

1. What is Auxiliary Intervention?

Concept of Auxiliary Intervention

Auxiliary intervention refers to a procedure whereby a third party with an interest in the outcome of pending litigation between others may join that litigation to assist one party in achieving victory. Auxiliary intervention is not a lawsuit, and the intervenor is not a party but merely an assistant to support the victory of the party being assisted.

Legal Nature of Auxiliary Intervention

Auxiliary intervention is not filing a new lawsuit but participating in existing litigation. Therefore, the intervenor does not have independent party status but holds an auxiliary position to assist the party being supported. However, the intervenor’s litigation authority does not derive from the party being assisted but is an independent authority recognized by law.

Practical Benefits of Auxiliary Intervention

The greatest benefit of auxiliary intervention is that a third party who will be affected by the litigation outcome can directly participate in the lawsuit to defend their own interests. Particularly when the litigation outcome directly impacts one’s legal status, such as in cases involving joint and several guarantors, principal debtors, or insurers, auxiliary intervention enables active involvement in the litigation.

2. When Can Auxiliary Intervention Be Filed?

Meaning of Legal Interest

Article 71 of the Civil Procedure Act provides that a third party with an interest in the outcome of litigation may join pending litigation in court to assist one party. Here, “interest” means legal interest, not factual, economic, or emotional interest.

Cases Where Legal Interest Is Recognized

According to the Supreme Court of Korea en banc decision in Case No. 2014Da225809, having an interest in the litigation outcome means cases where the judgment’s res judicata or enforcement effect naturally applies, or at least cases where the legal status of the person seeking to intervene is determined based on that judgment.

Specific Examples

When a creditor files a lawsuit against a joint and several guarantor for performance of the guarantee obligation, the principal debtor faces the prospect of a reimbursement claim lawsuit if the joint and several guarantor loses. In such cases, the principal debtor may become an intervenor for the joint and several guarantor. Additionally, in patent infringement litigation, a licensee may intervene to assist the patent holder, and in insurance-related litigation, an insurer may intervene to assist the insured.

3. Is Auxiliary Intervention Available in Administrative Litigation?

Application of the Administrative Litigation Act

Since Article 8 of the Administrative Litigation Act provides for the application of the Civil Procedure Act by analogy, Article 71 of the Civil Procedure Act regarding auxiliary intervention also applies to administrative litigation. Supreme Court Decision 2012Hu1033 explicitly states that the provisions on auxiliary intervention under the Civil Procedure Act apply by analogy to litigation for cancellation of trial decisions on rejections.

Example of Litigation to Cancel Korea Fair Trade Commission Corrective Measures

According to Supreme Court Decision 2012Mu257, in administrative litigation seeking cancellation of corrective measures ordered by the Korea Fair Trade Commission, when such corrective measures involve stopping or prohibiting specific actions by a business operator against another party, the judgment in that litigation determines whether the business operator can continue those specific actions. Therefore, the counterparty to those actions has their legal status determined by that judgment and may file auxiliary intervention to assist the Korea Fair Trade Commission in such administrative litigation.

Joint Litigation-Type Auxiliary Intervention

In administrative litigation cases, auxiliary intervention by a participant, even if it does not fall under third-party participation as stipulated in Article 16 of the Administrative Litigation Act, may still be permitted if the requirements for auxiliary intervention under the Civil Procedure Act are met, and its nature is that of joint litigation-type auxiliary intervention.

4. When Is Auxiliary Intervention Not Allowed?

Concern for Litigation Delay

The proviso to Article 71 of the Civil Procedure Act provides that auxiliary intervention is not allowed if it would significantly delay the litigation proceedings. This limitation is intended to protect litigation economy and the parties’ right to a speedy trial.

Criteria for Determining Significant Delay

Whether litigation proceedings are significantly delayed is determined by comprehensively considering the stage of case progress, the content of facts and evidence the intervenor intends to assert, and the timing of intervention. For example, if someone seeks to intervene at a stage where arguments are nearly concluded while making assertions that require new evidence examination, this may be viewed as causing delay.

Court Discretion

Whether there is significant delay in litigation proceedings is subject to the court’s discretionary judgment. Therefore, those seeking to intervene should file their intervention application as soon as possible to eliminate concerns about litigation delay.

5. How Do You File an Intervention Application?

Application Method

Since provisions regarding lawsuits do not apply to auxiliary intervention, an intervention application may be filed orally or in writing. Article 161 of the Civil Procedure Act explicitly provides for this. In practice, filing in writing is general and recommended.

Required Information in the Intervention Application

According to Article 72, Paragraph 1 of the Civil Procedure Act, an intervention application must specify the purpose of intervention (which party to assist) and the reason for intervention (the nature of the legal interest in the litigation outcome). The purpose of intervention identifies which party is being assisted, and the reason for intervention describes the content of the legal interest in the case outcome.

Need for Verification

Unless there is an objection from the parties or a request for verification from the court, there is no need to verify the reason for intervention. An intervention application may be filed simultaneously with litigation actions that the intervenor may take. Article 72, Paragraph 3 of the Civil Procedure Act permits this, allowing, for example, filing an intervention application together with submitting an answer.

Timing of Intervention

Auxiliary intervention may be filed at any stage of litigation. Intervention is possible not only in the first instance but also in appeals and final appeals. However, as mentioned earlier, since intervention is not allowed if it significantly delays litigation proceedings, it is advantageous to intervene as soon as possible.

6. What Happens If There Is an Objection to the Intervention Application?

When There Is No Objection

In principle, no decision on acceptance or rejection of the intervention application is made. Therefore, if no party raises an objection, the intervenor immediately acquires the status of auxiliary intervenor and may perform litigation actions.

When There Is an Objection

If a party objects to the intervention application, the court makes a decision on whether to allow the intervention. Even if there is an objection, the proceedings of the main lawsuit are not stayed, and even if there is a decision rejecting intervention, the intervenor may perform litigation actions without restriction until that decision becomes final. This is provided in Article 75, Paragraph 1 of the Civil Procedure Act.

Effect of Decision Rejecting Intervention

If a decision rejecting intervention becomes final, the litigation actions taken by the intervenor up to that point lose effect. However, if invoked by the party being assisted, their effect is maintained. Article 75, Paragraph 2 of the Civil Procedure Act specifies this, allowing litigation actions by the intervenor that are favorable to the party being assisted to be preserved.

7. What Litigation Actions Can an Intervenor Take?

All Litigation Actions Possible in Principle

According to the main clause of Article 76, Paragraph 1 of the Civil Procedure Act, an intervenor may in principle perform all litigation actions. There is no restriction on asserting or disputing facts, submitting evidence, filing appeals, or raising objections. An intervenor’s appeal may only be filed during the appeal period for the party being assisted.

Independent Litigation Authority

The intervenor’s litigation authority does not derive from the party being assisted but is an independent authority recognized by law. Therefore, notice of hearing dates and service of litigation documents must be provided separately to the intervenor. Supreme Court Decision 2006Da75641 clarifies this principle.

Evidence Submission and Fact Assertion

An intervenor may submit evidence that the party being assisted could not submit or assert facts that the party being assisted could not assert. This is a core function of the intervention system, serving to substantially supplement the litigation conduct of the party being assisted.

8. What Actions Cannot an Intervenor Take?

Actions That Contradict the Party Being Assisted

Article 76, Paragraph 2 of the Civil Procedure Act provides that if an intervenor’s litigation action contradicts the litigation action of the party being assisted, the intervenor’s action has no effect. This means that the will of the party being assisted takes precedence.

Actions Detrimental to the Party Being Assisted

Since the intervenor is in a position to assist the party being supported, actions detrimental to that party are not permitted. For example, asserting facts that contradict the facts claimed by the party being assisted, or submitting evidence contrary to the interests of the party being assisted, is not allowed.

Actions That Cannot Be Taken Due to Litigation Progress

An intervenor cannot file amendments to the complaint, counterclaims, or intermediate confirmation claims. Additionally, exercising private law rights is not possible. This is because the intervenor is merely an assistant, not a party. Actions that even the party being assisted cannot take due to the stage of litigation progress naturally cannot be taken by the intervenor either.

9. Can the Party Being Assisted Take Actions Different from the Intervenor’s Actions?

Priority of the Party Being Assisted’s Will

The purpose of Article 76, Paragraph 2 of the Civil Procedure Act is that when the litigation actions of the party being assisted and the auxiliary intervenors conflict, the will of the party being assisted takes precedence. Therefore, the party being assisted may take actions that contradict the intervenor’s actions.

Possibility of Abandoning or Withdrawing Appeals

According to Supreme Court Decision 2010Da38168, the party being assisted may also abandon or withdraw appeals filed by auxiliary intervenors. This decision held that when the Korea Sports Council abandoned an appeal, the appeals filed by the auxiliary intervenors were withdrawn and the case was terminated.

Practical Considerations

Intervenors should be aware that appeals they file or litigation actions they take may lose effect if they conflict with the will of the party being assisted. Therefore, it is important for intervenors to conduct litigation in close consultation with the party being assisted.

10. How Does a Judgment Affect an Intervenor?

Concept of Collateral Effect

According to Article 77 of the Civil Procedure Act, when there is auxiliary intervention, the judgment, except in special cases, has effect on the intervenor as well. This is called the collateral effect of the judgment. However, this is not res judicata but rather a binding effect whereby the intervenor and the party assisted cannot assert to each other that the judgment is improper when the party assisted loses.

Scope of Collateral Effect

According to Supreme Court Decision 73Da1030, in auxiliary intervention under Article 65 of the Civil Procedure Act, the collateral effect of the judgment on the intervenor occurs only between the intervenor and the party being assisted, and does not extend to the relationship between the intervenor and the opposing party of the party being assisted.

Principle of Equity

When an intervenor assists the party being supported and conducts litigation jointly, but the party being assisted loses the lawsuit, equity requires that the intervenor be bound and unable to assert to the party being assisted that the adverse judgment is improper. This reflects the principle that one must accept the result when one has had the opportunity to participate in and defend the litigation but lost.

11. What Is the Scope of Collateral Effect?

Judgments That Form the Basis of the Final Decision

Supreme Court Decision 2012Da78184 states that the collateral effect of a prior final judgment extends only to factual and legal determinations that formed the basis of the conclusion of that prior final judgment, and only to matters that the auxiliary intervenor could have asserted or disputed as a common interest with the party being assisted.

Case of Settlement Recommendation Decision

When the prior litigation was terminated by a settlement recommendation decision rather than a final judgment, collateral effect is not recognized because there was no factual and legal determination by the court as in a final judgment. Supreme Court Decision 2012Da78184 clarifies this point.

Dicta or Supplementary Determinations

According to Supreme Court Decision 95Da42133, the collateral effect of a prior final judgment does not extend to supplementary or incidental determinations or dicta that were not essential elements of the prior final judgment and could not affect the conclusion. Collateral effect is limited to determinations that were essential to deriving the judgment’s conclusion.

12. What Happens If Notice of Hearing Date Is Not Given to the Intervenor?

Protection of Independent Litigation Authority

Supreme Court Decision 2006Da75641 held that the intervenor’s litigation authority does not derive from the party being assisted but is an independent authority. Therefore, notice of hearing dates and service of litigation documents must be provided separately to the intervenor, apart from the party being assisted.

Occurrence of Procedural Defect

Proceedings conducted at a hearing without providing the intervenor with notice of the hearing date or summons, thereby failing to give them an opportunity to present arguments, cannot be considered lawful. This is because it violates the intervenor’s procedural rights.

Cure of the Defect

However, if an intervenor who did not receive notice of the hearing date appeared in person at the hearing and had an opportunity to present arguments, and did not object at that time to not having received notice of the hearing date, the procedural defect of not giving notice is cured. Supreme Court Decision 2006Da75641 established this principle.

13. Practical Considerations

Need to Attach Court Fees

According to Supreme Court Decision 2008Ma600, litigation in which the government participates as an auxiliary intervenor for one party cannot be considered litigation with the government as a party. Therefore, when the government, as an auxiliary intervenor for the defendant as the party being assisted, files an appeal against a first-instance judgment in its capacity as an intervenor, it must naturally attach the court fees prescribed in the Civil Litigation Court Fees Act. This means that exemption from court fees does not apply even when the government is an intervenor.

Need for Prompt Intervention

While auxiliary intervention is possible at any stage of litigation, it is not allowed if it significantly delays litigation proceedings. Therefore, it is important to file an intervention application immediately upon learning of the existence of a legal interest in the litigation outcome. Particularly when intervening at the appellate stage, the issue of delay is more likely to arise, requiring even more prompt decision-making.

Consultation with the Party Being Assisted

If an intervenor’s litigation action contradicts the litigation action of the party being assisted, the intervenor’s action has no effect, and the party being assisted may also abandon or withdraw the intervenor’s actions. Therefore, it is important for intervenors to establish litigation strategy in close consultation with the party being assisted and make consistent assertions.

Understanding Collateral Effect

When auxiliary intervention is filed, if an adverse judgment becomes final, the intervenor cannot assert to the party being assisted that the judgment is improper. Therefore, before deciding to intervene, it is necessary to fully review the likelihood of winning the lawsuit, and if intervening, to actively engage in litigation to obtain a favorable judgment.

Advice from Atlas Legal

Atlas Legal has extensive experience in successfully handling numerous auxiliary intervention cases. We provide expert legal advice throughout the entire process, from determining whether to intervene, establishing litigation strategy after intervention, to consulting with the party being assisted. Particularly in complex cases involving joint and several guarantors, principal debtors, insurers, and others, we have many examples of effectively protecting clients’ rights and interests through auxiliary intervention.

14. FAQ

Atlas Legal, located in Songdo, Incheon, provides various legal services including corporate advisory, corporate disputes, corporate consulting, corporate criminal matters, international transactions, and international disputes. When auxiliary intervention is needed in civil litigation, we provide systematic legal services from determining whether to intervene to establishing litigation strategy after intervention, with extensive practical experience in successfully handling numerous intervention cases. We provide expert legal advice for protecting the rights and interests of third parties with an interest in litigation outcomes, such as joint and several guarantors, principal debtors, and insurers.