증언녹취서(Deposition) 제도와 문서제출명령(Subpoena duces tecum) 제도를 통한 실질적 소송경제의 실현 방안에 관한 연구

This article was written to introduce the American deposition system to Korean litigation procedural law. In America, unlike Korea, witness testimony can be heard before the formal trial which the judge and juries preside to hear the witness testimony. This is called deposition and it is possible to hear at any time and any where only when the stenotypist and the clerk of court are seated without judge’s attendance. If this system is adopted in Korean trials, it will give a big change of legal actions and will be contributed to the adversary system. Currently, Korean law practice situations regarding the witness testimony are quite far from the adversary system and attorneys are usually asked based upon the prepared paper that was worked upon earlier in her office. The witness then answers to the questions in concert with the scenario. The questions are typically leading questions because witnesses can answer only “Yes” or “No.” Therefore, in order to realize litigation efficiency and real adversary system, the court should hear the necessary witness testimony and should give the chance the testimony of the witness to the parties before the trial and out of the courthouse. It is sufficient to receive the hearing report from the parties. This article discusses firstly the U.S. civil and criminal procedure concerning witness testimony, and thereafter the affidavit and the court contempt are examined. Subpoena duces tecum is explained in the litigation proceedings as an alternative of deposition. With the in-court testimony existing in Korea, it is not easy to reach the truth of the real fact for giving adjudication. Thus, procedural remedies that incorporate the deposition should be followed.