지원사업
학술연구/단체지원/교육 등 연구자 활동을 지속하도록 DBpia가 지원하고 있어요.
커뮤니티
연구자들이 자신의 연구와 전문성을 널리 알리고, 새로운 협력의 기회를 만들 수 있는 네트워킹 공간이에요.
초록· 키워드
오류제보하기
Practicing lawyers experience frequently cases where insufficient evidences are presented to Court so that they afraid justice is not achieved in those cases. In particular, these situations occur where (ⅰ) a number of injured parties seek compensation from big size companies or organizations for damages in so called modem type litigation or mass tort case, or (ⅱ) companies bring actions against opponents engaged in completely different industry. Their common feature is that one party hardly knows what documents or evidences are in the possession of the other party while the other party appears to have a sophisticated system in regard to business records and therefore great deal of evidences are obtainable.
The Code of Civil Procedure (CCP) has some provisions that enable a party (hereinafter referred to as Discovering Party) to demand those kinds of evidences from opponent party (hereinafter referred to as Opponent Party by way of Court' order. That is, under the CCP, once the Discovering Party proves existence of certain documents with Opponent Party, the former may apply for production of that document to Court. However, Discovering Party meets difficulties in finding what documents are kept by Opponent Party. For this reason, our law regarding production of document does not work well even from the beginning. To assist Discovering Party in this regard, the 2002 amendment to the CCP sets a new provision whereby Opponent Party may be ordered to report the Court what documents they have and/or what documents they will present as evidence at hearing, when Discovering Party broadly point out, not necessarily specifically, and move for it. However, even if such Court's order is issued, it might be of no assistance to Discovering Party because non compliance with the order is not subject to any statutory sanction. In case where Discovering Party moves for the production of document, similar results customarily happen since the CCP has few strong sanctions against the non-compliance by Opponent Party.
For these reason, it is worth while to consider introducing the American discovery system, i.e. the FRCP Discovery. The FRCP provides various ways collectively called Discovery including automatic disclosure, deposition, interrogatories, Production of documents, request for admissions, and examination of physical and mental condition. Since these devices are operated without interposing by Court, the procedures could proceed with conveniently and fast. Further, since sanction provided in the FRCP and strict ethics rules are applied, Opponent Party would have no choice but to comply with the FRCP or Court's relevant order. As a result, much more sufficient can be brought to Court, judgment could be rendered based on more accurate facts.
Needless to say, one system has always two conflicting aspects, merit and demerit. Even in America, the current FRCP is subject to severe criticism mainly from an economical view point as some discovery tools result in huge legal fees. In author's view, this issue should be resolved, taking into account two purposes in civil procedural law such as realization of justice based on more accurate facts and saving of cost. Going back to Korean reality, in author's view, not a few judgments are rendered based on intuition by judge rather than sufficient fact and evidence. Our system loses balance between the above two purposes, Conclusively, author believes that the FRCP should be introduced to meet the complexity litigation as seen above.
The Code of Civil Procedure (CCP) has some provisions that enable a party (hereinafter referred to as Discovering Party) to demand those kinds of evidences from opponent party (hereinafter referred to as Opponent Party by way of Court' order. That is, under the CCP, once the Discovering Party proves existence of certain documents with Opponent Party, the former may apply for production of that document to Court. However, Discovering Party meets difficulties in finding what documents are kept by Opponent Party. For this reason, our law regarding production of document does not work well even from the beginning. To assist Discovering Party in this regard, the 2002 amendment to the CCP sets a new provision whereby Opponent Party may be ordered to report the Court what documents they have and/or what documents they will present as evidence at hearing, when Discovering Party broadly point out, not necessarily specifically, and move for it. However, even if such Court's order is issued, it might be of no assistance to Discovering Party because non compliance with the order is not subject to any statutory sanction. In case where Discovering Party moves for the production of document, similar results customarily happen since the CCP has few strong sanctions against the non-compliance by Opponent Party.
For these reason, it is worth while to consider introducing the American discovery system, i.e. the FRCP Discovery. The FRCP provides various ways collectively called Discovery including automatic disclosure, deposition, interrogatories, Production of documents, request for admissions, and examination of physical and mental condition. Since these devices are operated without interposing by Court, the procedures could proceed with conveniently and fast. Further, since sanction provided in the FRCP and strict ethics rules are applied, Opponent Party would have no choice but to comply with the FRCP or Court's relevant order. As a result, much more sufficient can be brought to Court, judgment could be rendered based on more accurate facts.
Needless to say, one system has always two conflicting aspects, merit and demerit. Even in America, the current FRCP is subject to severe criticism mainly from an economical view point as some discovery tools result in huge legal fees. In author's view, this issue should be resolved, taking into account two purposes in civil procedural law such as realization of justice based on more accurate facts and saving of cost. Going back to Korean reality, in author's view, not a few judgments are rendered based on intuition by judge rather than sufficient fact and evidence. Our system loses balance between the above two purposes, Conclusively, author believes that the FRCP should be introduced to meet the complexity litigation as seen above.
목차
Ⅰ. 서론
Ⅱ. 실무상에서 경험하는 문서제출명령제도의 한계
Ⅲ. 미국법상의 Discovery 제도
Ⅳ. 결론(도입의 필요성)
參考文獻
ABSTRACT
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