                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-13-1995

Choi vs. Kim, etc.
Precedential or Non-Precedential:

Docket 94-5036




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                           No. 94-5036


                           IN SIK CHOI,

                                               Appellant,

                                v.

                  HYUNG SOO KIM; NANCY SOO LEE;
                       and GOLDEN PLASTICS

                                               Appellees.



          Appeal from the United States District Court
                   for the District of New Jersey


                   D.C. Civil Action No. 93-19


                      Argued July 20, 1994
              Opinion Reassigned November 18, 1994

       Before:   SCIRICA, LEWIS and SEITZ, Circuit Judges.

                     (Filed: March 13, 1995)



Charles A. Caudill, Esquire (Argued)
Daniels & Associates
745 West Main Street
Suite 250
Louisville, Kentucky 40202

 Attorney for Appellant

Anthony D. Cipollone, Esquire (Argued)
299 Market Street
P.O. Box 542
Saddle Brook, New Jersey 07662
Attorney for Appellees
                        OPINION OF THE COURT

SEITZ, Circuit Judge.


       This is an appeal from a final order of the New Jersey

district court in a diversity action.     The order granted

defendant Kim's motion for summary judgment, denied a similar

motion by plaintiff, Choi, and dismissed with prejudice the

complaint against the other two defendants.      Our review is

plenary.
                             I.   FACTS

       Choi, a South Korean native, entered into an agreement

with Kim, also a South Korean, under which Choi agreed to export

cash boxes to Kim.   Choi shipped the boxes to Kim for sale in the

United States, but Kim failed to pay for them.

       In an effort to secure payment, Choi persuaded Kim to give

him a promissory note for the amount due.      The note, executed in

Korea, was accompanied by a "notarial deed" ("deed").     The deed

included a "compulsory execution" clause, which provided, as

translated, that "[i]f the promissor delay a payment of the

promissory note to the creditor, the promissor acknowledged and

stated that the promissor would be taken a compulsory execution

immediately, he has no objection to make about it." Appendix at

45.

       Kim allegedly defaulted on the note, and Choi obtained an

Order of Execution in Korea to enforce his rights to compulsory

execution under the deed (the alleged Korean "judgment").1

1
 . The Order of Execution provides, as translated: "NOTARIAL
DEED: I, the undersigned, grant this order of execution to the
Thereafter, Kim allegedly fled to the United States and conveyed

all, or a substantial portion, of his property to Nancy Soo Lee

("Lee") and Golden Plastics Corporation, a New Jersey corporation

("Golden Plastics"). See Complaint ¶¶ 4-5.
       Choi, by his attorney in fact Song, commenced this action

in the United States District Court for the District of New

Jersey against Kim, Lee, and Golden Plastics (collectively

"defendants") seeking enforcement of his Korean "judgment."

       In granting defendant Kim's motion for summary judgment,

the district court first expressed skepticism that the deed and

order of execution, prepared in Korea, amounted to a judgment

under Korean law. See Song v. Kim, et al., No. Civ. A. 93-19,

1993 WL 526340, *6-*7 (D.N.J. Dec. 16, 1993) ("Mem. Op.").2    The

court found that, even if the deed and order of execution

constituted a judgment, it would not be recognized under

controlling New Jersey law, because it was entered without

according Kim minimal due process protections. Id. at *8.

Therefore, the district court refused to recognize the Korean

"judgment."   This appeal followed.
                          II. DISCUSSION
                  A. Subject Matter Jurisdiction

       Before addressing the merits, the district court

considered whether diversity jurisdiction existed.   In doing so,
(..continued)
creditor, In Sik Choi to perform a compulsory execution for the
debtor (promissor), Hyung Soo Kim." Appendix at 46.
2
 . The district court dismissed the complaint with prejudice
against defendants Lee and Golden Plastics. Mem. Op. at *8.
it was required to decide who was the real party in interest

under Rule 17(a) of the Federal Rules of Civil Procedure.3 See
Mem. Op. at 2; see also Bumberger v. Insurance Co. of North

America, 952 F.2d 764, 768 (3d Cir. 1991); Field V.

Volkswagenwerk AG, 626 F.2d 293, 302 (3d Cir. 1980).   In its

summary judgment opinion, the court concluded that the caption of

the complaint showed that Song was the only named "plaintiff" in

the action. Mem. Op. at *8 n.2.   It then held that because Choi,

not Song, was the real party in interest, it was inclined to

dismiss the action under Rule 17(a) of the Federal Rules of Civil

Procedure. Id. at *3.   The district court, nevertheless,

proceeded to address the merits of plaintiff's claim for what it

said were reasons of judicial economy. Id. at *4.   It concluded

that it was free to do so because 1) Rule 17(a) was procedural in

nature; 2) the case could have been continued or the complaint

refiled with Choi as the named plaintiff; and 3) Choi's inclusion

in the action would not destroy diversity jurisdiction. Id.
3
.   Rule 17(a) provides in relevant part:
     Rule 17. Parties Plaintiff and Defendant; Capacity

       (a) Real Party in Interest. Every action shall be
       prosecuted in the name of the real party in
       interest. . . . No action shall be dismissed on
       the ground that it is not prosecuted in the name
       of the real party in interest until a reasonable
       time has been allowed after objection for
       ratification of commencement of the action by, or
       joinder or substitution of, the real party in
       interest; and such ratification, joinder, or
       substitution shall have the same effect as if the
       action had been commenced in the name of the real
       party in interest.

    FED. R. CIV. P. 17(a).
       We need not determine whether the district court was free

to proceed to the merits.    We so conclude because of our

disagreement with the district court's ruling that Song was the

only named plaintiff in the complaint.   We turn to that issue.

       On January 18, 1992, Choi executed a Power of Attorney

that gave Song the express power to bring suit. See Appendix at
56, ¶ 1.4   Thereupon, as Choi's attorney in fact or agent, Song

instituted the present action in the district court.   The

complaint is captioned in relevant part as follows:

       In Shik Choi                            )
       . . . .                                 )
                                               )
       BY AND THROUGH                          )
                                               )
       Murphy Inbum Song                       )
       . . . .                                 )
                            Plaintiff          )
                                               )
       v.                                      )
       . . . .

Appendix at 63.


       This court has found a number of cases where attorneys in
fact initiated the suits on behalf of named principals or

plaintiffs.   In those cases, the captions were drafted in the

same way as the caption in the present complaint. See, e.g.,

Canton v. Duvergee, 438 F.2d 1218 (3d Cir. 1971); National Ins.

Underwriters v. Mark, 704 F. Supp. 1033 (D. Colo. 1989);

Lumberman's Underwriting Alliance v. Hills, 413 F. Supp. 1193

4
 . Generally, an agent may be expressly authorized to institute
legal proceedings on behalf of his principal. See 3 AM. JUR.2D
Agency § 97 (1986).
(W.D. Mo. 1976); Wimberly By Bauer v. Furlow, 869 S.W.2d 314 (Mo.
Ct. App. 1994).    These cases support the conclusion that Song, as

attorney in fact, instituted the present action on behalf of

Choi.

        It is true that the complaint contained one reference to

Song, rather than Choi, as the plaintiff.       See Complaint ¶ 2.

However, the remainder of the complaint clearly identified Choi,

not Song, as the named plaintiff.    Indeed, defendants' answer

indicates that the defendants knew that Choi was the named

plaintiff.

        In a footnote in its opinion, the district court

questioned the way in which plaintiff's summary judgment motion

was styled.    See Mem. Op. at *8 n.2.    The court stated that

plaintiff's summary judgment motion was entitled "Plaintiffs'

Motion for Summary Judgment."    The court "wondered" whether

"inadvertent error has created the impression that Choi is also a

named plaintiff, or if Song's counsel is simply unsure as to how

this action should be styled." Id.       Despite this statement, the

court confined its analysis to the complaint and concluded that

Song was the only named plaintiff.

        However, a reading of the entire summary judgment motion,

including the caption on page one, reasonably indicates that

Choi, not Song, was the named plaintiff, and that Song brought

the present suit as Choi's agent pursuant to the power of

attorney.    Thus, we are inclined to agree with the district court

that plaintiff's counsel probably made an typographical error in

entitling the motion in the plural.
         We conclude that the complaint, reasonably construed,

alleges that Choi, not Song, is not only the named plaintiff,5

but also, as the district court found, the real party in

interest.6   As such, Choi has standing to bring this action as

plaintiff.

         We now consider the merits of this timely appeal.
          B. The Status of the Deed and Order of Execution

         Choi contends that the district court erred in concluding

that the Korean Code of Civil Procedure does not provide a debtor

with a procedure to challenge the order of execution in a Korean

court.    As a result, Choi argues, the judgment was not obtained

in violation of due process, and, therefore, the district court

should have recognized it.

         As we have noted, the district court expressed skepticism

as to whether the deed and order of execution constitute a valid

judgment.    It, nevertheless, assumed, arguendo, that the

5
 . In his brief to this court, Song, as attorney in fact for
Choi, relies on Zaubler v. Picone, 473 N.Y.S.2d 580 (N.Y. App.
Div. 2d Dep't 1984) to support his bringing the present suit on
behalf of Choi. In Zaubler, the Second Department held that a
partner's attorney in fact, absent any indication to the
contrary, was authorized to institute an action in his
principal's name. Id. at 582. This argument, and the reliance on
Zaubler, is a further indication that Song did not institute the
present action on his own behalf. The action was brought by
Song, as attorney in fact, in the name of his principal Choi.
6
 . In the Notice of Appeal, Song erroneously designated himself
as the "plaintiff," appealing the order of the district court's
dated December 17, 1993. On September 23, 1994, this court, on
Song's motion, substituted Choi for Song pursuant to Federal Rule
of Appellate Procedure 43(b) (because Choi was the real party in
interest).
documents constituted a judgment. See Mem. Op. at *7.            However,

the district court referred to and treated the documents as a

valid confession of judgment. See id.           We will assume, without

deciding, that the deed and order of execution amount to a valid

foreign confession of judgment.           We will now consider whether New

Jersey would recognize this Korean confession of judgment.

        The Treaty of Friendship, Commerce and Navigation Between

the United States of America and The Republic of Korea, 8 U.S.T.

2217, elevates a Korean judgment to the status of a sister state

judgment. See Vagenas v. Continental Gin Co., 988 F.2d 104, 106

(11th Cir.), cert. denied, 114 S. Ct. 389 (1993) (elevating a

Greek judgment to the status of sister state judgment under

identical provisions in Greek-U.S. treaty); see also Mem. Op. at

*5.   In this diversity action, New Jersey law governed the

district court's determination whether to recognize a foreign

country or sister state judgment. Somportex Ltd. v. Philadelphia

Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. 1971), cert.

denied, 405 U.S. 1017 (1972).7
7
 . The Restatement of the Law (Second) Conflict of Laws
provides:

        The Supreme Court of the United States has never
        passed upon the question whether federal or State
        law governs the recognition of foreign nation
        judgments. The consensus among the State courts
        and lower federal courts that have passed upon the
        question is that, apart from federal question
        cases, such recognition is governed by State law
        and that the federal courts will apply the law of
        the State in which they sit.

RESTATEMENT (SECOND)   OF   CONFLICTS § 98 cmt c (Supp. 1988) (emphasis
added).
       In New Jersey, sister state judgments by confession are

entitled to full faith and credit.8 United Pac. Ins. Co. v.
Estate of Lamanna, 436 A.2d 965, 968-74 (N.J. Super. Ct. Law Div.

1981); see Somportex Ltd., 453 F.2d at 440.9    However, New Jersey

courts will not enforce these foreign judgments if the rendering

state 1) lacked personal jurisdiction over the judgment debtor,

2) lacked subject matter jurisdiction, and 3) failed to provide

the judgment debtor adequate notice and an opportunity to be

heard. See Estate of Lamanna, 436 A.2d at 968-74; City of Phila.

v. Stadler, 395 A.2d 1300, 1303 (Burlington County Ct. 1978),

aff'd, 413 A.2d 996 (N.J. Super. Ct. App. Div.), certif. denied,

427 A.2d 563 (N.J. 1980), cert. denied, 450 U.S. 997 (1981); see

also Maglio & Kendro, Inc., 558 A.2d at 1373.    In this case,

neither personal nor subject matter jurisdiction is at issue.

The issue is whether Korea provided the debtor, Kim, with notice

of the entry of the order of execution and an opportunity to be

heard as to its validity.



8
 . The Full Faith and Credit Clause of the United States
Constitution provides that "Full Faith and Credit shall be given
in each State to the public Acts, Records, and judicial
Proceedings of every other State . . . ." U.S. CONST. art. IV,
§ 1. As the New Jersey Supreme Court explained, "That clause
directs the courts of each state to give preclusive effect to the
judgments of a sister state." Watkins v. Resorts Int'l Hotel &
Casino, Inc., 591 A.2d 592, 596 (N.J. 1991).
9
 . As the district court pointed out, in New Jersey valid
foreign judgments are also entitled to full faith and credit. See
Watkins, 591 A.2d at 596; Maglio & Kendro, Inc. v. Superior
Enerquip Corp., 558 A.2d 1371, 1357 n.4 (N.J. Super. Ct. App.
Div. 1989).
      The district court stated that although Kim waived his

right to notice and an opportunity to be heard prior to execution

on the deed, it was unable to find any provision in the Korean
Code that provided Kim with an opportunity to vacate or challenge

the "judgment" once the creditor acted upon the order of

execution. See    Mem. Op. at *7.   All parties disagree with the

district court and agree that provisions exist that allow a

debtor to challenge a judgment in Korea. See Brief of Appellant

at 22, 30, Choi v. Kim, et al. (No. 94-5036); Supplemental Brief

of Appellant at 8-9, Choi v. Kim, et al. (No. 94-5036);

Supplemental Brief of Appellees at 6 (unnumbered pages), Choi v.

Kim, et al. (No. 94-5036) (Defendants' point out that "[a]

judgement [sic] debtor is entitled to challenge the judgment in

accord with the procedures of the Korean Code of Civil

Procedure.").    The parties, however, disagree as to whether

Korean law provides every judgment debtor with notice of the

entry of an order of execution.

      Defendants argue that provisions to challenge the deed and

order of execution are meaningless because the debtor, Kim, was

never notified of the entry of the order of execution. Id.      As a

result, Kim could not challenge the deed or the order of

execution. Id.    We will assume, without deciding, that the

parties have correctly stated the Korean law (regarding the

existence of provisions to challenge the entry of the order of

execution) and next determine whether the debtor was provided

with adequate notice of the entry of the order of execution, so

that he might challenge it.
       In the deed the debtor waived his right to notice and the

opportunity to be heard prior to the issuance of the order of
execution.   This is not in dispute.   As this court has recently

pointed out, the United States Supreme Court has held that a

judgment debtor's "constitutional right to due process was not

violated when judgment was confessed against him . . . without

prior notice or hearing, because `due process rights to notice

and hearing prior to a civil judgment are subject to waiver.'"

Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1270

(3d Cir. 1994) (quoting D.H. Overmeyer Co., Inc. v. Frick Co.,

405 U.S. 174, 185 (1972)) (internal citations omitted).     This

holding has been adopted as the law in New Jersey. See Estate of

Lamanna, 436 A.2d at 969-70.   In this case, the waiver was proper

and did not offend due process.10

       What does offend due process, defendants argue, is that

the debtor was never notified of the entry of the order of

execution and, therefore, was unable to challenge either the

order of execution or the execution clause in the deed.     We turn

now to that issue.

       In Estate of Lamanna, the court evaluated the Pennsylvania
confession of judgment procedure, and held that for a confession

of judgment to satisfy due process, there must at least be some

provision for post-judgment notice and hearing─before the

10
 . The waiver must be made knowingly and voluntarily. D.H.
Overmeyer Co., Inc., 405 U.S. at 185; Jordan, 20 F.3d at 1270;
Estate of Lamanna, 436 A.2d at 969-70. In the present case,
there has been no claim that the waiver was coerced or in any way
not consented to knowingly or voluntarily.
deprivation of debtor's property takes place. See id. at 969-70;
973-74.11   The debtor must be given an opportunity to challenge

the initial waiver of pre-judgment notice and hearing in the

confession clause and to raise any defenses to the debt or the

entry of the judgment. See id.; see also D.H. Overmeyer Co., Inc.

v. Frick Co., 405 U.S. 174 (1972); Jordan, 20 F.3d at 1272

(discussing a court's review of a waiver in a confessed

judgment); Girard Trust Bank v. Martin, 557 F.2d 386 (3d Cir.),

cert. denied, 434 U.S. 985 (1977).12   The Estate of Lamanna court
concluded that because the debtor did not receive pre-deprivation

notice, it could not raise defenses to the earlier waiver

contained in the confessed judgment.

       In the present case, defendants claim that the debtor,

Kim, never received notice of the entry of the execution clause.

Choi claims that because Kim was present when the deed was

prepared, and was thereby aware of the compulsory execution

clause, and signed it, there was implicit notice of execution.

However, in Estate of Lamanna, where the judgment debtors

11
 . The Lamanna's Estate court adopted the rule articulated in
Community Thrift Club, Inc. v. Dearborn Acceptance Corp., 487 F.
Supp. 877 (N.D. Ill. 1980). In Community Thrift, the court held
that notice and an opportunity to challenge the waiver of due
process is not sufficient "if the debtor cannot challenge the
cognovit clause prior to the deprivation of his property through
execution of the confessed judgment." Id. at 883.
12
 . The New Jersey legislature has imposed stricter requirements
on the in-state confession of judgment practice. Rule 4:45-2 of
the New Jersey Rules Governing Civil Practice (entitled the
Procedure to Confess Judgment) requires that a judgment debtor be
given notice even before the judgment is entered. See N.J. CIVIL
PRACTICE RULES R. 4:45-2.
executed a similar cognovit clause, this implicit "notice" did

not satisfy due process.    Thus, there is no evidence that the

debtor was notified at the time the order of execution was

issued.   In fact, when a debtor is "abroad," as was the case

here, the Korean Code allows a creditor to dispense with any
notice before compulsory execution. See KOREAN CODE CIV. P., Art.

502 (1990). (In other cases, some form of notification is

required. See   id., Art. 501.).   As in Estate of Lamanna, this

lack of notice would render any provisions for challenging the

"judgment" meaningless.    Under New Jersey law, the Korean

procedure does not comport with due process.
                           III. CONCLUSION

       The order of the district court will be affirmed.
In Sik Choi v. Hyung Soo Kim, et al.
No. 94-5036



LEWIS, Circuit Judge, concurring in the judgment.

            I agree with the majority that if one were to reach the

issue of whether the laws of South Korea accorded the defendant,

Kim, American due process in the circumstances predicating this

lawsuit, one would likely reach the conclusion the majority

espouses.   However, I do not think we should pursue that course.

I believe that before we render an opinion which finds the legal

system of a foreign sovereign wanting in that it produces

judgments that do not comport with our homegrown notions of

justice, prudence dictates that we determine whether what we are

criticizing is in fact a "judgment" at all.   Since the plaintiff,

Choi, did not establish his prima facie case for domestication of

the ostensible South Korean judgment, I would grant summary

judgment on that ground and leave the due process concerns for

another day.
                                A.

          A plaintiff has a prima facie burden when he or she

asserts that he or she is entitled to enforcement in one state of

a court judgment of another.   Courts in a variety of

jurisdictions have recognized this basic burden:   a proffered

judgment must at least appear to be a valid judgment before an
enforcing court will accord it a presumption of enforceability.

E.g., Knighton v. Int'l Business Machines Corp., 856 S.W.2d 206,

209 (Tex. App. -- Houston [1 Dist.] 1993) (noting that prima

facie case of enforcement is demonstrated upon introduction of "a

foreign judgment [that] appears to be a valid, final, and

subsisting judgment"); Fischer v. Kipp, 277 P.2d 598 (Kan. 1954)

("duly authenticated copies" of foreign judgments suffice to make

out prima facie case for enforcement); see generally Fred R.

Surface & Assoc., Inc. v. Worozbyt, 260 S.E.2d 762, 764 (Ga. App.

1979) (judgment creditor's mere assertion of indebtedness,

without tender of judgment, does not prove its case).   Thus, the

Full Faith and Credit Act, 28 U.S.C. § 1738, which describes

materials that are entitled to full faith and credit, states in

pertinent part:
          The records and judicial proceedings of any
          court of any . . . State, Territory or
          Possession, or copies thereof, shall be
          proved or admitted in other courts within the
          United States and its Territories and
          Possessions by the attestation of the clerk
          and seal of the court annexed, if a seal
          exists, together with a certificate of a
          judge of the court that the said attestation
          is in proper form.


Although we have previously explained that the mode of

authenticating court records described in section 1738 is not

exclusive (United States v. Mathies, 350 F.2d 963, 966 n.4 (3d
Cir. 1965)), the statute clearly reflects the sense that not just

any piece of paper can serve as evidence of a judgment satisfying

a plaintiff's prima facie burden.

          Of course, the issue of whether a putative judgment is

in fact a judgment -- that is, "the sentence of the law given by

[a] court as the result of proceedings instituted therein for the

redress of an injury" (Allegheny County v. Maryland Cas. Co., 132

F.2d 894, 897 (3d Cir. 1943) -- does not arise very often in the

garden variety full faith and credit case.   Full faith and credit

cases usually involve domestication or enforcement in one state

of a judgment of the tribunal of another state.   It is ordinarily

quite easy to tell whether a plaintiff has a "judgment" entitled

to a presumption of validity.   Such documents tend to share
common characteristics among the states of the Union.

Furthermore, practitioners generally recognize that they should

present a formal, properly authenticated copy of a judgment to

the enforcing court.13

13
 .   By contrast, this case is obviously more awkward than the
usual full faith and credit case because it is only as a result
of a treaty that South Korean judgments are accorded full faith
and credit treatment. See Maj. Op. at __ [Typescript at 8].
Thus, because of the treaty, courts in the United States are
          Even when a party is seeking enforcement of a confessed

judgment, in the ordinary case the putative judgment would have

the appearance of a judicial or quasi-judicial instrument.     E.g.,
N.J. R. 4:45-2 (court issues confessed judgment); Pa. Civ. Pro.

R. 2951(a) (prothonotary issues confessed judgment upon filing of

instrument with confession of judgment clause).   Thus, if a

litigant arrived at the courthouse door in New Jersey with a

document that looked, to all the world, like a notarized private

agreement signed in (for instance) Nevada between himself and

another party, the enforcing court would reasonably look upon the

ostensible "judgment" with suspicion.

          That was precisely the case here.   Choi presented a

document that appeared to be nothing more than a private contract

between himself and Kim, notarized by a South Korean notary.     Not

surprisingly, the district court noted that it was "skeptical

that the Deed and Order" at issue "constitute[d] a valid

judgment, as if rendered and entered by a Korean court of law."

Song v. Kim, et al., No. Cir. A. 93-19, 1993 WL 526340, *6 (D.

N.J. Dec. 16, 1993) ("Op.").   In fact, the court ruled that

"[b]ased on the parties' submissions, the Court finds that no
(..continued)
forced to credit and enforce legal instruments that may be
unfamiliar to us -- both in language and in appearance. Absent
the treaty, the South Korean "judgment" at issue here would have
been scrutinized under the less deferential standards used to
determine the validity and enforceability of foreign-country
judgments. See generally Restatement (Third) of the Foreign
Relations Law of the United States §§ 481, 482 (1987).
Korean court has entered a judgment against Kim, nor has Choi

ever brought the matter before a Korean court."   Id. at *7.   The

court should have stopped there:   Choi had failed to prove his

prima facie case, and his case should have been dismissed with

prejudice.14

14
 .   Choi argues that supplemental materials submitted to us
during this appeal establish that he has a valid judgment
entitled to full faith and credit. Because I believe that the
district court should have ended its inquiry with a finding that
Choi had not established his prima facie case in the district
court, I would not make any determinations of South Korean law
here. However, from the parties' submissions and my independent
research, it seems apparent that Choi did not strictly follow
South Korean procedures for obtaining a valid confessed judgment.
First, Article 522 of the South Korean Civil Code states that
"[a]n execution clause of a deed drawn up by a notary public
shall be issued by the notary public who is preserving the deed."
Art. 522(1). Although the same law and notary office -- Dong Wha
Law & Notary Office Inc. -- issued both the notarial deed and the
order of execution in this case, different people at different
branches of Dong Wha actually performed the notarizing. See App.
45 (notarial deed executed by Choong Won Kim of Dong Wha office
at 58-7 Seosomun-dong, Joong-ku Seoul, Korea); id. 46 (execution
order signed by Ho Yang Shin of Dong Wha office at 814-6
Yoksam-dong, Kangnam-ku Seoul, Korea). Second, Article 522(1) of
the South Korean Civil Code also states that the notary "who is
preserving the deed" must issue the execution clause. Similarly,
Article 56-2(3) of the South Korean Notary Public Act states with
respect to notarial deeds that

          When a notary public prepares a [notarial]
          deed . . . he shall make a script of the deed
          in adherence to the original of [sic] bill or
          check, and an original and a transcript of
          [sic] deed in adherence to a copy of [sic]
          bill or check, and deliver then the script to
          the creditor as specified on the bill or
          check, and the transcript, to the debtor
          thereon. The original of the deed shall be
          preserved by the notary public.
                                B.

           However, although the district court had essentially

found that Choi had not made out a prima facie case, the court

nevertheless took the matter a step further.   The court stated

that although the instrument before it had not been proven to be

a judgment, that "may be beside the point, as the Court will

accept, for purposes of argument, that [sic] Deed and Execution

Order do constitute a valid judgment under Korean law."      Op. at

*7.   Having made this assumption, the district court then

addressed whether the South Korean legal system had accorded Kim

American-style due process.   The district court's analysis of the

"process" provided by South Korean law is brief enough that I

quote it in full:
          While Kim may have waived his right to notice
          and hearing prior to execution on the Deed,
          the Court is unable to ascertain whether
          Korea provides Kim any opportunity to vacate
          or challenge this `judgment' once Choi acts
          upon the Execution Order. As the Court
          understands Song's argument, Choi could seize
          any of Kim's attachable assets in Korea
          without ever having a Korean court of law
          enter a judgment on the Deed and Execution
          Order. Whether or not this is a correct
(..continued)
(Emphasis added.) There is no indication that any notary office
is "preserving" the deed in this case. To the contrary, the
notarial deed itself states that "this original of the deed and
its copy are made according to the request of the creditor and
the debtor and the original is gave [sic] to the creditor, In Sik
Choi and the copy is gave [sic] to the debtor, Hyung Soo Kim."
App. 45. Therefore, it does not appear from the record before us
that there was a copy or original left to be "preserved" at Dong
Wha.
           interpretation of Korean law, and
           irrespective of the notice, hearing and
           opportunity to vacate questions, this kind of
           judgment without judicial oversight is
           anathema to our concept of due process.


Id. (emphasis added).   As the italicized portions of the district

court opinion demonstrate, the district court did not ascertain

what the law of South Korea was, but rather determined that what

might be the law of South Korea did not accord Kim American due

process.

           On appeal, the majority takes the same path.    The

majority first assumes that a valid judgment was before the

district court (Maj. Op. at __ [Typescript at 8]), then approves

the district court's conclusion that what might be the South

Korean law implicated here did not afford Kim American due

process (Maj. Op. at __ (noting that majority "assume[d], without

deciding, that the parties have correctly stated the Korean

law"), __-__ (determining that according to what the parties say

South Korean law was, "the Korean procedure does not comport with
due process") [Typescript at 10, 10-13]).

           I believe that the district court erred in assuming

that Choi had presented a valid judgment to the district court.

That is because, having made this assumption, the court was

forced to decide whether the laws of South Korea pertaining to

instruments analogous to American confessions of judgment accord

American due process.   There having been a less intrusive manner
in which this case could be resolved (the finding that Choi had

failed to make out a prima facie case for enforcement), comity

counsels that American courts avoid subjecting the laws of a

foreign sovereign to evaluations based on American notions of due

process.

           I do not mean to suggest that comity prevents us from

subjecting the laws of South Korea to a due process evaluation in

all cases, or even many cases.   Rather, I would invoke comity in

the prudential sense that we should avoid disparaging the law of

a foreign sovereign which, though certainly not intended, I

believe both the district court opinion and the majority opinion

have the effect of doing.    As we have observed recently, comity,

though difficult to define, is in one respect "a version of the

golden rule:   a `concept of doing to others as you would have

them do to you . . . .'"    Republic of the Philippines v.
Westinghouse Elec. Corp., 43 F.3d 65, 75 (3d Cir. 1994), quoting

Lafontant v. Aristide, 844 F. Supp. 128, 132 (S.D. N.Y. 1994).      I

would not want a tribunal in South Korea, which could resolve on

narrow grounds a case involving a putative American judgment, to

reach out and judge our own procedures as unjust based on South

Korean notions of what process is due a litigant.

           For the foregoing reasons, I am unable to join in the

majority's analysis although I do concur in the judgment.
