Wonyol Jon, On Introduction of Discovery into Korean Civil Procedure, Human Right and Justice, Vol. 0(501) (2021), pp.110-138.
<Abstract>
Since there are many old obstacles for litigation parties to collect evidence for proving the facts of pleadings, introduction of the “Discovery” system of the United States into Korean civil procedure is said to be necessary. The voice advocating this introduction has recently been intensified. When we look into the U.S. discovery procedure, we can find various means of collecting evidence, including required disclosures (FRCP §26(a)), interrogatories (§33), requests to produce documents, electronically stored information and tangible things (§34), depositions (§30), physical and mental examinations (§35), requests to admit facts and genuineness of documents (§36), etc. Introduction of such individual methods for evidence gathering, however, would not accord with the present Korean civil procedure, or would not be practically effective. There are some consensus that is necessary among Korean lawyers in order for discovery system to be effective when it is introduced into Korean civil procedure. First, principle of prohibition of fishing expedition should be downsized. Second, exception area to discovery, which is expressed as “non-privileged” in the U.S., should be expanded and clarified. Third, sanctions against violation or infringement of discovery should be multiply arranged and the power for the sanctioning court should be strengthened.
<Keywords>
Discovery, Maldistribution of Evidence, Collection of Evidence, Fishing Expedition, Privilege, Sanction
Wonyol Jon, On Introduction of Discovery into Korean Civil Procedure, Human Right and Justice, Vol. 0(501) (2021), pp.110-138.
<Abstract>
Since there are many old obstacles for litigation parties to collect evidence for proving the facts of pleadings, introduction of the “Discovery” system of the United States into Korean civil procedure is said to be necessary. The voice advocating this introduction has recently been intensified. When we look into the U.S. discovery procedure, we can find various means of collecting evidence, including required disclosures (FRCP §26(a)), interrogatories (§33), requests to produce documents, electronically stored information and tangible things (§34), depositions (§30), physical and mental examinations (§35), requests to admit facts and genuineness of documents (§36), etc. Introduction of such individual methods for evidence gathering, however, would not accord with the present Korean civil procedure, or would not be practically effective. There are some consensus that is necessary among Korean lawyers in order for discovery system to be effective when it is introduced into Korean civil procedure. First, principle of prohibition of fishing expedition should be downsized. Second, exception area to discovery, which is expressed as “non-privileged” in the U.S., should be expanded and clarified. Third, sanctions against violation or infringement of discovery should be multiply arranged and the power for the sanctioning court should be strengthened.
<Keywords>
Discovery, Maldistribution of Evidence, Collection of Evidence, Fishing Expedition, Privilege, Sanction