당사자의 효율적인 증거수집·개시방안에 관한 비교법적 고찰

Abstract

To achieve credibility of trial results, certain fact must be determined through a valid and appropriate procedure. However, recent legal action show that evidence is maldistributed on the one side of party, especially in a pollution·environmental lawsuit, medical malpractice suit, product liability action, and corporate litigation. In these legal actions, an adverse party who is usually a consumer, or patient has difficulty obtaining the evidence of facts to prove. If the party who has not proved satisfactorily is likely to lose the case according to the burden of proof. This phenomenon of ‘maldistribution of evidence’ could have caused distrust upon the legal system. Thus, in this article, suggests ways to overcome the maldistribution of evidence and to improve our procedures of evidence collection in a more effective way. This article is based on three parts. First, examines current procedure of evidence collection, focusing on orders for the production of documents and the preservation of evidence, under the Civil Procedure Act. Second, research to foreign legal system for the effective evidence collection, focusing on the independent evidentiary proceedings in Germany and the inquiry to opponent in Japan. both of contries are effort to overcome frustration and chronic delay in court, in Germany and in Japan for reformation of the Code of Civil Procedure, particularly relating to provisions for the collection of evidence. The German Code of Civil Procedure, there is "selbständiges Beweisverfahren". The Japanese Code of Civil Procedure, there are essentially several means commonly employed by Japanese attorneys for collecting evidence. Finally, examines various way to improve our system being discussed, and conducts a comparative analysis of the systems for effective evidence collection system in german and japan. These comprehensive study could overcome the phenomenon of ‘maldistribution of evidence’ and to develop effective procedure of evidence collections. Furthermore the legal system could achieve to credibility of trial results,