증언녹취서(Deposition) 제도와 문서제출명령(Subpoena duces tecum) 제도를 통한 실질적 소송경제의 실현 방안에 관한 연구
Some Suggestion to Promote an Actual Judicial Economy through the Deposition and Subpoena duces tecum
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This article was written to introduce the American deposition system to Korean litigation procedural law. In America, unlike Korea, witness testimony can be heard before the formal trial which the judge and juries preside to hear the witness testimony. This is called deposition and it is possible to hear at any time and any where only when the stenotypist and the clerk of court are seated without judge’s attendance. If this system is adopted in Korean trials, it will give a big change of legal actions and will be contributed to the adversary system. Currently, Korean law practice situations regarding the witness testimony are quite far from the adversary system and attorneys are usually asked based upon the prepared paper that was worked upon earlier in her office. The witness then answers to the questions in concert with the scenario. The questions are typically leading questions because witnesses can answer only “Yes” or “No.” Therefore, in order to realize litigation efficiency and real adversary system, the court should hear the necessary witness testimony and should give the chance the testimony of the witness to the parties before the trial and out of the courthouse. It is sufficient to receive the hearing report from the parties. This article discusses firstly the U.S. civil and criminal procedure concerning witness testimony, and thereafter the affidavit and the court contempt are examined. Subpoena duces tecum is explained in the litigation proceedings as an alternative of deposition. With the in-court testimony existing in Korea, it is not easy to reach the truth of the real fact for giving adjudication. Thus, procedural remedies that incorporate the deposition should be followed.
Abstract
This article was written to introduce the American deposition system to Korean litigation procedural law. In America, unlike Korea, witness testimony can be heard before the formal trial which the judge and juries preside to hear the witness testimony. This is called deposition and it is possible to hear at any time and any where only when the stenotypist and the clerk of court are seated without judge’s attendance. If this system is adopted in Korean trials, it will give a big change of legal actions and will be contributed to the adversary system. Currently, Korean law practice situations regarding the witness testimony are quite far from the adversary system and attorneys are usually asked based upon the prepared paper that was worked upon earlier in her office. The witness then answers to the questions in concert with the scenario. The questions are typically leading questions because witnesses can answer only “Yes” or “No.” Therefore, in order to realize litigation efficiency and real adversary system, the court should hear the necessary witness testimony and should give the chance the testimony of the witness to the parties before the trial and out of the courthouse. It is sufficient to receive the hearing report from the parties. This article discusses firstly the U.S. civil and criminal procedure concerning witness testimony, and thereafter the affidavit and the court contempt are examined. Subpoena duces tecum is explained in the litigation proceedings as an alternative of deposition. With the in-court testimony existing in Korea, it is not easy to reach the truth of the real fact for giving adjudication. Thus, procedural remedies that incorporate the deposition should be followed.
참고문헌 (35)
- 김광태, "영국 법원에서의 사건관리와 증인진술서의 활용", 법조, 50(9) (2001)
- 선서인증제도에 관한 연구, "김상영", 법무부, ~ (2006)
- 김승렬, "의료과실소송과 Res ipsa loquitur", 법률신문, ~ (2001)
- 김희균, "美國法上 證據開示制度의 理論과 實際:美聯邦刑事訴訟 實務를 中心으로", 저스티스, (87), pp.159~173 (2005), 한국법학원
- 문흥수, "증인신문방식의 개선과 미국식 준비절차의 도입필요성", 법률신문, ~ (1994)
- 박준의, "외국공문서의 국내법적 효력에 관한 몇 가지 문제와 아포스티유 협약", pp.2008
- 서동희, "미국법상의 Discovery 제도의 도입 필요성", 법학연구, (18), pp.775~812 (2005), 한국법학회
- 吳奇斗, "美國 聯邦刑事節次上 Discovery制度 考察", 저스티스, 70, pp.236~268 (2002), 한국법학원
- 이재홍, "법정모독죄와 법정소란", 사법논집, 21 (1990)
- 정한중, "시민참여형 공소권통제제도의 모색", 법학연구, 12(1), pp.218~246 (2009), 법학연구소
- 호문혁, "민사소송법" (2000), 법문사
- Wayne R. LaFave, "Criminal Procedure" (2008), West Pub. Co
- Charles Alan Wright, "Federal Practice and Procedure", Civil Sec, 2146, pp.458~ (1971)
- David J. Sharpe, "Murdock Head" (1978), Law and Medicine
- Henry Kempe, "The Battered Child Syndrome", Journal of the American Medical Syndrome, 181 (1962)
- Henry R. Cheeseman, "Business Law" (2002)
- John Caffey, "Multiple Fractures in the Long Bones of Infants Suffering from Chronic Subdural Hematoma", The American journal of roentgenology and radium therapy, 56(2), pp.163~173 (1946)
- John Caffey, "Some Traumatic Lesions in Growing Bones Other Than Fractures and Dislocation-Clinical and Radiological Features", British Journal of Radiology, 30, pp.225~238 (1957)
- Linda Dakin-Grimm, "Preparation Matters when Videotaping Depositions", pp.1~2 (2007), The National L. J
- Milton C. Lee, "Criminal Discovery: What Truth Do We Seek?", UDC, 1998, pp.7, ~
- Thomas J. Murray, "Videotaped Depositions: Putting Absent Witnesses in Court", A.B.A.J, 68, pp.1402~ (1982)
- Barron v., "Barron v. Florida Freedom Newspapers Inc., (Fla.) 531 So.2nd 113, 13 FLW 497, 15 Media LR 1901", ~ (1901)
- Boyd v., "Boyd v. United States, 116 U.S. 616", ~ (1886)
- Continental Oil Co. v., "United States, 393 U.S. 79, 89 S.Ct. 233 (Mem), 21 L.Ed.2d 61, U.S.N.M., (Oct. 21, 1968)", ~ (1968)
- In re Parsons, "150 U.S. 150, 37, 1, L.Ed 1034, 14 U.S. 50", ~ (1893)
- International Harvester Co. v., "Eaton Circuit Judge, 163 Mich. 5, 127 NW 695", ~
- Jencks v., "Jencks v. United States, 355, U.S. 657", ~ (1957)
- Matchett v., "Matchett v. Superior Court, 40 Cal.App.3rd, 623, 115 Cal. Reporter 317", ~ (1974)
- Montana, "Montana Petroleum Tank Release Compensation Bd. v. Crumley’s, Inc., 174 P.3d 948", ~ (2008)
- "Rosenthal v. Dickerman, 98 Mich. 208, 57 NW 112", ~
- "Smith v. Superior Court of San Joaquin County, 189 Cal.App.2d 6, 11 Cal.Rptr. 165, 88 A.L.R.2d 650, Cal.App. 3 Dist., (Feb. 7, 1961)", ~ (1961)
- "Wright Root Beer Co. v. Dr. Pepper Co., 414 F.2d 887, 889-90 (5th Cir.1969)", ~ (1969)