미국 연방 법제상 디스커버리 의무 위반에 대한 당사자 제재에 관한 연구 - 반대사실 추론 지시를 중심으로

Professor LEE Si-yoon, who sadly passed away recently, has called for stronger sanctions for violating the document submission order for many years. The discovery research group consisting of judges and lawyers proposed revamping the document submission order system. Among other recommendations, the group proposed remanding Articles 349, 350(1), and 351 of the Civil Procedure Act to strengthen sanctions against parties to ensure the document submission order’s effectiveness. To ensure that the proposal works effectively, this article examines how sanctions, especially adverse inference instruction, works under the U.S. discovery law. After discussing how the rule works in practice in the United States federal courts, this article discusses Korean civil procedure focusing on how the United States federal civil procedure and Korean civil procedure differ. Considering the difference, the Article proposes that the amendment should explicitly state that the adverse inference sanction is a form of a judgment. This ensures that the parties know ex ante that the sanction will have an adverse effect on the final judgment. Knowing ex ante that the sanction actually has adverse consequences, the parties will be deterred, at least partly, from violating or disregarding the document submission order. While it may not be sufficient, the proposal will add a little more deterrence effect to the order that lacked such an effect.