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A Comparative Legal Study on the Civil Discovery of Governmental Documents

  • DONG-A LAW REVIEW
  • 2014, (62), pp.367-405
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Ji Won Park 1

1국회도서관

Accredited

ABSTRACT

In 2002, Korean Code of Civil Procedure(hereinafter, “KCCP”) s. 344 was amended (ⅰ) to exclude “the documents possessed by public entity, including Nation, local authority, and even public enterprise(hereinafter, “Government Documents”)” from the general duty of producing evidentiary documents, and (ⅱ) to leave it to complete discretion of public entity on whether to produce “documents containing official secrets(hereinafter, “Government Secret Documents”)”. As a result, the likelihood of documentary discovery from the public entity is almost denied in Korea. This legislative attitude was intended to harmonize KCCP and Korean Freedom of Information Act(hereinafter, “KFOIA”). However it is harshly criticized as a more excessive legislation than is needed to achieve legislative intent. In England, who keeps the documents is not a factor to determine the scope of documentary disclosure. What matters is the balancing of the public interest in the administration of justice and the public interest in maintaining the confidentiality of certain documents which may include governmental secrets. Furthermore, in 2001, Japanese Code of Civil Procedure(hereinafter, “JCCP”), which was very similar to KCCP, was amended to eliminate general exclusion of Government Documents, and add special procedure to hear the discoverability of Government Secret Documents. The legislations of both countries show us how to improve documentary discovery scheme in Korea. What is important is the contents of the documents rather than who is possessing them. Hence I suggest that the exception under KCCP 344 ② should be eliminated to create general duty to produce Government Documents. And I also suggest that the determination of discoverability of certain Government Secret Documents should not be on the discretion of the public entity holding them but on the Judiciary.

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