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An Examination of the System for Confirmation of Facts in US Civil Litigation Procedure focusing on the Comparison with Free Valuation of Evidence and Adversary System

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2018, 6(4), pp.9-55
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law

Jongho Kim 1

1호서대학교

Candidate

ABSTRACT

The researchers of the United States Litigation Act compared Anglo-Saxon legal procedures to continental law, and the most essential differences are: (1) whether the fact-finding authority is in the person of party or not and whether judge has a power to finding fact, (2) whether the litigation procedure is separated pretrial with trial or not. I have pointed out that they are divided into two parts. The idea of the clarification of the facts, especially the idea of who will be in charge of final authority and responsibility, seems to be the essential difference between the two systems. In the civil litigation model of the Adversary System of the common law, the explanation of the facts is not the role of the judge. It is what the parties do. In Anglo-Saxon civil procedures, the proceedings are under way to clarify thorough cases (facts) between the parties (agent attorneys) in the pretrial after the lawsuit is filed before trail. Confirmation of the facts as completely as possible between the parties and where the arguments on issues are narrowed down, typically verifying the fact that the jury has contention to the arguing facts and concluding with merits (verdict or case losing). The judge has power only to judge norms. Judges have decided, in principle, only legal disputes and direct jurors to make a verdict in accordance with the law. There should be divided the role between them and it can be said that a thorough division of roles is being done as the principle is that you can tell the truth and I have to tell the law. Before the trial, the parties shall have the authority to gather strong evidence and investigation and try to clarify the facts on an aggressively basis. It is a model in which the jury, rather than the judge, makes the final judgment. On the other hand, the continental legal system has the authority and the responsibility to submit arguments and evidence to the trail rather than through a jury, but finally it gives the judge the authority and responsibility to solve the case by applying the law. In Germany and other continental law jurisdiction, litigation is the state’s action for settlement of disputes, and after the lawsuit is filed, the idea that the court, the state institution, has the authority and responsibility to solve the problem and lead the settlement is flowing strongly. It is a model based on trust in the courts (judges) after the Roman law. Although the approach of the above two schemes is attempted in recent years, there is an essential difference between the two. The difference is not so much a matter of size as judges are concerned about. There is a qualitative difference in how to think about the way of fact-finding. Korea has inherited the continental law model of Germany and has built up its own system by adopting the system of the Anglo-Saxon law. In Korea’s civil lawsuits, while maintaining the continental law model, the Civil Litigation Act has been amended and efforts in practice have partially accepted the American civil litigation model, and have pursued subjective litigation activities and litigation efficiency and expeditiousness. The civil proceedings of Korea have succeeded in bringing about reasonable results to ordinary cases relatively quickly, and it can be regarded as an excellent system for hearing large-scale cases. However, the public disclosure system in Korea is insufficiently related to the type of evidence-based reconsideration, and I think it is insufficient to function as a system for the identification of facts. In general civil cases, Korean system is excellent in that it is an effective fact-finding and it is not necessary to change the framework. However, there is a problem that can not be clarified by the current system which does not have the authority to gather evidence and information given to the parties in certain kinds of evidential rehabilitation cases, and it is necessary to improve them.

Citation status

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