미국의 소제기 전 증거개시와 우리의 증거보전절차에의 시사점

The court should make a judgment on the facts of dispute based on objective evidence extracted by evidence investigation, and it is the duty of the Civil Procedure Act to make them do so. The most difficult thing for courts to find facts through evidence is to collect and secure the necessary evidence. At the time of commencement of the lawsuit, the outcome of the lawsuit is likely to be determined by how much evidence the plaintiff and the defendant have. Therefore, it is reasonable to emphasize the paradigm shift centered on evidence collection in evidence investigation. The collection of evidence methods subject to evidence investigation can be divided into before and after filing. The most desirable lawsuit shall be to be able to create a state of equality in arms by exchanging the evidence methods collected and held by the plaintiff and the defendant before filing a lawsuit. In addition, in order for the court's recognition of facts to be consistent with the objective facts, data held by not only the parties but also third parties must be discovered. When these tasks are completely performed, most of the factual perceptions of both parties coincide, making the judgment unnecessary or very likely to be reconciled. Presumably, the importance of collecting evidence is greater before filing than after filing, and this idea is supported by legislative examples from each country that emphasized the power of potential litigants to collect evidence. For example, there is the discovery of evidence in the United States, which has a wide range of evidence preservation and evidence collection functions before and after filing a lawsuit. The disclosure of evidence after filing in the United States is an essential feature of the party's independent collection of evidence, and the disclosure of evidence before filing is characterized by preserving evidence. In the United States, pre-suit discovery focuses on preservation of evidence through court intervention. The evidence preservation procedure before filing a lawsuit is carried out under the leadership of the court with the aim of investigating evidence. Depending on its use, the function of discovery can be expected. There are some implications of pre-suit discovery in the United States on the procedure for preservation of evidence in Korea; the need to expand the purpose of the procedure to collect evidence or discovery, ease the requirements for the use of the procedure, and expand the means of collecting evidence before filing. In particular, it is necessary to obtain statements from parties or third parties familiar with facts that are likely to be the key to dispute resolution as a means of preserving and collecting evidence before filing a lawsuit. To this end, it will be possible to introduce depositions before filing a lawsuit in the United States.