國際民事司法共助로서의 證據調査에 관한 比較法的 考察: 우리나라와 美國을 中心으로

Abstract

As transnational commerce grew tremendously in recent decades, the volume of domestic litigation involving foreign aspects has concomitantly increased. Litigants attempting to take evidence located abroad have met both complicated procedures and significant obstacles. To understand these procedures and obstacles, this article explains the background information on the essential differences between common law and civil law evidence gathering. Discovery in the United States, a common law nation, is basically a private matter between the parties. Hence, the Federal Rules of Civil Procedure in America afford very broad discovery while limiting courts' involvement to enforcing applicable rules, resolving procedural disputes, and protecting against abuses. On the other hand, civil law countries such as South Korea do not consider discovery and trial as separate phases in an action; obtaining evidence takes place during the pendency of a trial and the judge controls the taking of evidence. To improve methods of taking evidence when witnesses, documents, or other materials are found abroad, the United States became a signatory to the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. By contrast, South Korea has yet to become a party to the Convention. To analyze evidence gathering between the United States and another signatory to the Convention on basis of the information stated above will help us to avoid some difficulty and confusion when South Korea joins the Convention. In addition, this article will explore the taking of evidence between the United States and a non-signatory to the Convention, and discuss whether evidence obtained in a country which is not a party to the Convention is admissible before the courts in America.