문서훼손을 통한 입증방해 행위와 그 제재

Destruction-including shredding, alteration, suppression-of document produced and kept by document owner usually do not lead to the strong legal sanction even if regulatory statutes and regulation impose duty to preserve, because obeyance of the duty often depends on self-regulation or the sanction is usually civil fine. However, destruction of document in relation with the legal process infringes severe public policy interest. To respond this policy concern, U.S. courts impose broad duty to preserve document when the legal process is initiated or reasonably foreseeable and sanctioned the violation of duty in various way. The sanction includes traditional sanction like adverse presumption, civil discovery sanction or adoption of independent damage in civil trial and penalty of obstruction of justice, Brady Doctrine and dicovery sanction to the Prosecutor’s act in criminal trial. Whereas the duty to preserve to document in relation to the legal process is dubious at best in Korea and the sanction is really weak or exists only on the paper. One of the cause of this weak sanction is relative weakness of liability which originate from the hardness of distinguishing illegal act from legal dispose of own property. Another cause is inquisitorial feature of Korean legal process which negate the necessity while adversary legal process requires severe sanction. However, sanction against this act should be strengthened because the legal process in Korea evolves toward to the adversary system.