한국형 디스커버리의 제도적 개선 방안 - 특허법 개정안을 중심으로 -

While there is some disagreement about how and when to introduce discovery, there is no disagreement about the need for it. There are some concerns about leakage of secrets and some of the adverse consequences of adopting American-style discovery, but as long as discovery is conducted by qualified experts, it should be possible. The most important aspect of the discovery process is the manner and content of discovery in relation to the Hague Evidence Convention. Under the Korean Bar Act, non-lawyers are prohibited from acting as legal representatives and from practicing law without qualification. However, it is not yet clear whether a U.S. lawyer would be in violation of the Korean Bar Act if he or she assisted a U.S. court in taking evidence rather than advising or representing a client. The Hague Evidence Convention requires a prohibition on limited declarations of refusal, but there is no domestic implementing legislation to prohibit them. In addition, as a matter of practice, U.S. lawyers are recording depositions in Korea. Therefore, it is necessary to comply with the Hague Evidence Convention to a certain extent, but to seek ways to foster it only in the IP law. Regarding the invention of AI, it is true that today's patent application process does not require disclosure of the invention process, and disclosure of the invention process is not required in virtually any jurisdiction. However, when judging whether an AI invention is eligible at this point, it is likely that the need for mandatory disclosure of the use of AI in the act of inventing and disclosure of the contribution will increase in light of the development trend of AI inventions in the future, and it is necessary to establish more detailed criteria for judging patent infringement or examination. In international litigation, international civil legal cooperation is now essential, especially given the close diplomatic and commercial ties between Korea and the United States. A declaration under Article 23 of the Hague Evidence Convention allows a state that does not allow discovery to refuse to enforce a subpoena issued for the purpose of pre-dated discovery. Accordingly, Korea has made a limited declaration of refusal, but U.S. courts have issued pre-dated discovery requests to some countries, including Korea, that may defeat the purpose of the declaration. Judicial friction with the U.S. over the discovery system is expected to continue in the future, and more active judicial cooperation in evidence investigation is needed depending on whether the system is implemented.