민사소송법의 문서제출명령과 개별법의 자료제출명령의 통합적 규율에 관한 소고

A Review on the Legislative Integration of Order to Produce Documents under the Civil Procedure Act and Order to Produce Materials under Other Laws

In some torts cases, it is particularly difficult for the plaintiff to prove damage or exact calculation of the amount of damage. Due to the difficulty of such proof, in addition to the order to produce documents under the Korean Civil Procedure Act(hereinafter, ‘KCPA’), the order to produce materials under the several Acts related intellectual property laws and unfair competition. Although this order to produce materials is a special rule for order to produce documents in KCPA, it does not fit well with the documentary evidence collection scheme under KCPA, because each Acts’ material collection scheme has developed interpretation of its own. Additionally, recent discussions are underway to expand the order to produce materials scheme in various Acts. Although this movement is due to the view that order to produce documents are not sufficient as a means of collecting evidence in these fields of laws, it should also be examined whether sufficient consideration has been given as to whether it is desirable to establish such special provisions in each Act. In particular, since a significant number of order to produce materials were introduced after the comprehensive revision of the KCPA in 2002, it should be examined if past needs to legislate order to produce materials under laws other than old KCPA are still compulsory after 2002 KCPA revision, which broadened the scope of documentary discovery. Currently, in the United States, evidence is collected through the discovery scheme established in the federal or state civil procedure rules, and there are no special rules in other special areas of law. However, in Japan, a system of order to produce documents is stipulated under Acts other than Civil Procedure Act like Korea, this legislative format originated from the needs to legislate order to produce materials as a special rule for orders to produce documents in the fields related to intellectual property and unfair competition when the scope of order to produce documents under Civil Procedure Act in the past is very limited. In this respect, rather than proliferating special laws, it would be desirable to incorporate order to produce materials into the KCPA and allow the court to use in-camera hearings or confidentiality orders at its discretion depending on the content or needs of the documents.