증거보전절차의 개선을 위한 시론

Korean Civil Procedure Code(KCPC) does not clearly provide plaintiffs the methods to gather evidences after filing of complaint, in contrast to discovery of U.S. civil procedure. Such is the way in most of civil law countries. However, need for collection of evidence before court’s examination is no less high in Korea as in the U.S., and this need is heightened when it comes to digital evidences, because these are apt to be modified or deleted. The practice for evidence examination in Korean courts still depends heavily on document evidences, and does not reflect features of digital evidences. §374 was enacted into KCPC in 2002 in order to contain digital evidence, but as this provision tries to grasp all new kinds of evidences, it hardly explains handling ways of digital evidences. §374 does not even distinguish analog style and digital style. §375 of KCPC, the provision for evidence preservation, should be amended in order to embrace the need to gather evidences for party themselves before and immediately after filing complaints. In this amendment, features of digital evidences should be considered such as repeatability, easiness in modification and deletion, and interactivity. In the amendment, some more points below should also be examined. First, proactive evidence collection should be allowed to some degree. Second, the present requirement in §375 to present necessity of advance investigation should be removed. Third, need for enactment of confidential procedure under certain requirements should be studied. Finally, in the amendment, some more points should be reviewed as well, such as format of digital evidence, meta data, and ways to deliver results of evidence gathering.