Wonyol Jon, On the Principle of Party Presentation in Korea, The Justice, Vol.205(2024. 12), pp.253-284.
<Abstract>
The principles of party autonomy and party presentation are emphasized in Korean civil procedure, and these principles are often juxtaposed with the adversarial system by Korean lawyers. However, American lawyers describe the civil procedure laws of European countries, including those in East Asia, as inquisitorial, positioning them in contrast to the adversarial system. This paper first compares the litigation procedures of the civil law system and the common law system, and examines the adversarial nature of Korean civil procedure in light of these comparisons. Korean civil procedure law is largely a result of the reception of continental European civil procedure law. Although witness cross-examination was introduced in 1961, Korean civil procedure still seems to fall within the continental legal system. This is evidenced by the fact that cross-examinations are often conducted perfunctorily in practice, and the Supreme Court frequently emphasizes the court's duty to clarify. In summary, while some Anglo-American elements have been introduced, Korean civil procedure remains largely influenced by the German model, which American scholars often define as an "inquisitorial procedure." When considering improvements to Korea’s civil procedure in the future, it is crucial to engage in serious discussions about the direction in which civil procedure is evolving and the extent to which the right to cross-examination will be guaranteed
<Keywords>
Principle of party presentation, Adversary system, Common law, Duty to clarify, Cross examination, Confrontation right.
Wonyol Jon, On the Principle of Party Presentation in Korea, The Justice, Vol.205(2024. 12), pp.253-284.
<Abstract>
The principles of party autonomy and party presentation are emphasized in Korean civil procedure, and these principles are often juxtaposed with the adversarial system by Korean lawyers. However, American lawyers describe the civil procedure laws of European countries, including those in East Asia, as inquisitorial, positioning them in contrast to the adversarial system. This paper first compares the litigation procedures of the civil law system and the common law system, and examines the adversarial nature of Korean civil procedure in light of these comparisons. Korean civil procedure law is largely a result of the reception of continental European civil procedure law. Although witness cross-examination was introduced in 1961, Korean civil procedure still seems to fall within the continental legal system. This is evidenced by the fact that cross-examinations are often conducted perfunctorily in practice, and the Supreme Court frequently emphasizes the court's duty to clarify. In summary, while some Anglo-American elements have been introduced, Korean civil procedure remains largely influenced by the German model, which American scholars often define as an "inquisitorial procedure." When considering improvements to Korea’s civil procedure in the future, it is crucial to engage in serious discussions about the direction in which civil procedure is evolving and the extent to which the right to cross-examination will be guaranteed
<Keywords>
Principle of party presentation, Adversary system, Common law, Duty to clarify, Cross examination, Confrontation right.