미국 연방민사소송규칙의 의무공개제도와 그 도입가능성에 관한 소고

From the perspective of our legal system, it would be quite unfamiliar and very awkward to accept at first that a party must automatically disclose information known to itself to the other party at an early stage in the litigation without a request or order from the court. In particular, there may be considerable resistance in our litigation practice, which is accustomed to a adversarial structure of litigation. However, it is also not fair to hide evidence and information and misuse it as a means of delaying litigation, then submit it unexpectedly and receive a favorable judgment that runs counter to the substantive truth. It can be said that the Principle of Party Presentation is also not a tool to justify such a situation, and there is already a consensus that it should be supplemented by the court’s power of clarification, inquisitorial investigation of evidence, and duty of truth. In this respect, FRCP’s mandatory disclosure requires that only the information or evidence that is favorable to itself to be used in the trial be disclosed immediately after the end of the pleadings, and when viewed as a whole in the lawsuit, it merely brings forward the timing of disclosure of information that would have been disclosed anyway. Therefore, it is compatible with the adversary system of the U.S. civil litigation, and for the same reason, it is also compatible with the Principle of Party Presentation in Korean civil procedure jurisprudence. In particular, if the Principle of Timely Submission and the penalty of loss of power to introduce undisclosed information in trial, which are introduced in the revised Civil Procedure Act of 2002, are understood as expanded application to certain information or evidence, the sense of difference with our civil litigation system can be said to be even less. Above all, the advantage of this system is that it functions as an information disclosure system rather than disclosure of the evidence itself, enabling efficient use of evidence collection schemes such as order to produce documents. Although the order to produce document list is still responsible for the collection of document information, there are doubts as to whether it is properly achieving the legislative purpose because of the absence of any sanctions against failure to disclose. Therefore, even apart from strengthening the sanctions on the order to produce document list, it will be possible to strengthen the evidence collection procedure indirectly through mandatory disclosure of document information and by precluding the party from using the undisclosed information as evidence at trial.