2015년 미국 연방민사소송규칙 개정과 한국형 디스커버리제도에 대한 시사점

2015 Amendments to the Federal Rules of Civil Procedure and its implications to Korean Evidence Collection Scheme

The new “package” of amendments to the U.S. Federal Rules of Civil Procedure(hereinafter “FRCP”) took effect on December 1, 2015. The amendments began with a Conference on Civil Litigation held by Rules Committee at the Duke Law School over two day in May, 2010. Though many of the changes are intended to lessen delays from the beginning of litigation by increasing judicial control over case management, the other important development was to limit the scope of discovery. In order to limit ever-increasing discovery costs, the new Rule made wholesale changes to Rule 26(b)(1), which defines the scope of discovery. The new Rule 26(b)(1) limits discovery to that which is “proportional to the needs of the case” and provides five illustrative factors for courts to consider: the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. On the other hand, the bills to amend Korean Civil Procedure Act(hereinafter “KCPA”) was introduced to the National Assembly which includes new scheme of so-called “Korean Discovery”. The proposed “Korean Discovery” is to allow devices to obtain evidence even before complaint is filed. It also introduced “relavancy” criteria to determine whether to allow pre-action discovery. In my opinion, the proposal seems to have been too ambitious to resolve old evidence-collection issues at once. The drafters of the proposal seems to overlook that the success of pre-action procedure is based on active utilization of post-action procedure. In practice, the only available useful means to collect evidence in KCPA is the order to produce documents, which is scarcely used. Hence the drafter should have more concentrate on post-action procedure than pre-action one. I believe that proportionality of 2015 amendment of FRCP may give us useful insight to propose new provision to outline the scope of evidence collection. Though the trend of amendments of FRCP since 1970s is to limit the scope of discovery, the purpose was always to find a efficient golden ratio. Designing Korean Discovery is also the same journey to find critical point and make clear rules which is essential for achieving a “just, speedy, and inexpensive determination” of civil disputes, though we are trying to expand the scope of discovery. In this sense, I would like to review 2015 Amendment of FRCP and its implication to the improvement of Korean Evidence Collection scheme.