Wonyol Jon, Burden of Persuasion in Preliminary Injunction, The Journal of Comparative Private Law, Vol. 29, No.4 (2022), pp.287-306.
<Abstract>
Civil Procedure Law of Korea distinguishes full level of proof from ‘prima facie showing’ with respect to burden of persuasion in civil cases. In addition, Civil Execution Law of Korea prescribes that ‘prima facie showing’ is enough to establish a preliminary attachment case, and that provisions for preliminary attachment should be applied mutatis mutandis to cases of preliminary injunction. Combining above rules, precedents and commentaries in Korea set the burden of persuasion in preliminary injunction cases as ‘prima facie showing’.
The level of proof in practice of preliminary injunction is, however, quite different from the explanation above. Due to the importance of preliminary injunction that sets legal standings for plaintiffs and defendants, courts in practice require quite high level of persuasion for such preliminary injunction cases.
This article first explores burden of proof for preliminary injunction cases in Germany, Japan, and the United States. This article then examines the meaning of “mutatis mutandis application”. It concludes that the provision for preliminary attachment with the burden of proof does not apply to preliminary injunction cases, and that the level of proof for preliminary injunction cases should be full level of proof instead of prima facie showing.
<Keywords>
burden of persuasion, preliminary attachment, preliminary injunction, proof, prima facie showing, mutatis mutandis application.
Wonyol Jon, Burden of Persuasion in Preliminary Injunction, The Journal of Comparative Private Law, Vol. 29, No.4 (2022), pp.287-306.
<Abstract>
Civil Procedure Law of Korea distinguishes full level of proof from ‘prima facie showing’ with respect to burden of persuasion in civil cases. In addition, Civil Execution Law of Korea prescribes that ‘prima facie showing’ is enough to establish a preliminary attachment case, and that provisions for preliminary attachment should be applied mutatis mutandis to cases of preliminary injunction. Combining above rules, precedents and commentaries in Korea set the burden of persuasion in preliminary injunction cases as ‘prima facie showing’.
The level of proof in practice of preliminary injunction is, however, quite different from the explanation above. Due to the importance of preliminary injunction that sets legal standings for plaintiffs and defendants, courts in practice require quite high level of persuasion for such preliminary injunction cases.
This article first explores burden of proof for preliminary injunction cases in Germany, Japan, and the United States. This article then examines the meaning of “mutatis mutandis application”. It concludes that the provision for preliminary attachment with the burden of proof does not apply to preliminary injunction cases, and that the level of proof for preliminary injunction cases should be full level of proof instead of prima facie showing.
<Keywords>
burden of persuasion, preliminary attachment, preliminary injunction, proof, prima facie showing, mutatis mutandis application.