문서제출의무

일본에서 자기이용문서성인정에 관한 판례를 중심으로

This Article reaches the following conclusion as to order for production of a document: (1) Korean legal academics may interpret in the same way as old civil procedural law prior to 2002 revision of Korean Civil Procedure Act the scope of the document which was executed for the benefit of the applicant (hereinafter “benefit document”) or with respect a legal relation between him/her and the holder (hereinafter “legal relation document”) under Article 344 (1) of Korean Civil Procedure Act. In particular, the said interpretation is thought to be proper as to the document used for the applicant in order to avoid systematic maldistribution of evidence; (2) Which documents will be determined first between benefit and legal relation ones is not of importance because the two is selective relation; (3) As far as the criteria to determine whether a certain document is one used for the applicant, Japanese case law put heavy weight on the objective nature of documents in terms of requirement for being an internal document, and categorized determination as to whether a document is not beneficial for the applicant. However, taking into account the contents and importance of a document, the purpose of litigation such as public interest action, and the status of the parties to an action, the court need to review and determine the factors by employing in camera proceedings or oder for partial production of a document; and (4) In terms of burden of proof related to the requirement for validity of order for production of a document, the applicant need to bear his/her burden to prove that his /her privilege not to produce a document does not exist. Hence, once the applicant prove it, the holder of the document need prove that the document falls within the scope of Article 344 of Korean Civil Procedure Act.