특허법상 서류제출명령에 관한 연구

Section 344 of Korean Civil Procedure (hereinafter referred to as KCP ) pro-vides the opposing party or a third party with a comprehensive obligation to produce documents. On the other hand, section 132 of Korean Patent Act (hereinafter called as KPA ) forces the adverse party to submit papers necessary to evaluate damages unless the opponent has a justifiable cause to refuse to do. As far as the former which was amended in 2002 is concerned, the latter is considered as a supplementary provision according to the prevailing view in Korea. In other words, the latter is meaningful only if the other party would submit papers, which do not fall within the scope of the former, necessary to determine the amount of injury caused. In this regard, it is disputed whether the opposing party has a justifiable cause to refuse to produce papers when he or she is reluctant to disclose his or her trade secrets before court and the papers include the said trade secrets. According to the majority view in Korea, the courts will strike a balance between pro-tection of trade secrets and search for the truth or procedural fairness, depending on the specific case in question. Section 347 (4) of KCP prescribes that A court can direct a document holder to produce the document when it deems necessary to determine whether the document is governed by section 344. In this case, the court should not allow others to peruse it. This provision is applicable only to the cases in which the document is subject to evidentiary privilege due to the fact that it contains confidential information. Hence, when section 347 (4) of KCP is literally construed, in-camera proceedings can not be mutatis mutandis applied to motion for order to produce papers in accordance with section 132 of KPA. However, I think that an application of the former need to be extended to the latter. In this respect, section 105 (2) of Japanese Patent Act need to be taken into account.