문서제출의무의 범위에 관한 개선방안 연구

A Study on the Improvement of the Scope of the Duty to Produce Evidentiary Documents

Under the previous Korean Code of Civil Procedure(KCCP), the court could make an order to produce evidentiary documents, only when the documents fall within the categories of “cited documents,” “documents subject to pos-sessory or inspection right,” “beneficiary documents,” or “legal relationship documents”. The KCCP was amended in 2002 to add a new provision(§344②) which establishes the general duty to produce all kinds of documents. However, (i) self-incriminatory documents, (ii) documents about professional or trade secrets, (iii) documents held by the holder exclusively for his/her own use and (iv) documents possessed by governmental entities are exempt from this duty. But there are some criticisms that the amendment raises many legal problems and it restricts just and fair production of documents. In light of the general need to disclose all the related evidence and to make public all the information of public institutions, it will be desirable to make it a general duty to produce all the evidentiary documents. By comparing benefits of disclosing the documents and those of concealing the documents, the courts should decide in camera whether or not to disclose each document subject to the production. The most important question is how to establish the standards for such comparison which can be accepted by all the parties of civil litigation. In answering this question, this article proposes that the duty to produce documents be expanded to include all kinds of documents including those possessed by governmental entities, and the grounds to refuse document production be limited to the cases such as when documents are related to important national interests, to grave privacy matters, or to the legally acknowledged rights to refuse testimony.