민사소송에서의 증거조사절차에 있어 몇 가지 문제점 －정보 및 증거수집제도로의 인식 전환을 위한 試論－

Abstract

In Korea there are some devices for parties to gather information and evidence from opposing party or the third person such as “order to produce documents(KCCP 344)”,“entrust a person who holds a document with forwarding it(KCCP 352)”, “entrustment of investigation(KCCP 294)” and “measures for hints and feedback(KCCP 140)”. These devices except measure for hints and feedback, however, are treated as evidentiary inspections and measure for hints and feedback has been seldom used among Korean courts because they consider that it should be used only for clarification of case. Then there had been no devices for gathering information and evidence in Korean evidentiary proceedings until 2002Civil Procedure Reforms. Now, a party can request the court to order production of lists and categories of the document for use as a device for identification of documents(KCCP 345, 346). The request for an order to produce the lists and categories of the documents should identify the facts to be proved or outline of documents and opponent should produce the lists and categories of documents that the opponent holds and he would like to produce as a evidence in proceedings. And also in camera process was provided for inspection of documentary evidence whether it could infringes individual private information or not by court. Especially, entrustment of investigation had been treated as a device of inspection of evidence in Korea, however it is really good methods of gathering information and evidence. We need to promote efficiency of entrustment of investigation as a gathering method. Although most advanced countries endeavor to make and develop pre-action gathering methods in evidentiary process, we have ignored them until now. Only we have pre-action evidentiary proceeding such as perpetuation of evidence if it could not be examined in the future. Therefore, we will have to make new pre action methods for gathering information and evidence. In the near future Korean Civil Justice system would be changed with electronic trial system. From this year new era had begun from patent procedure. Electronic filing system was equipped for procedure and most civil justice procedure will be electronized in 5 years. In this procedure also electronically stored Information and evidence(ESI) should be preserved and examined efficiently. However, we have no any system which could gather ESI efficiently until now. Just we have a method of examination of ESI, but it does not match with stance of Korean Civil Procedure Rules. And we have to endeavor to make two methods harmonize and to develop new method for gathering ESI. It will be essential agenda for electronic era of civil justice. In this article I will try to introduce new method for harmonizing rules and efficient evidentiary proceeding that could upgrade our civil justice system.