소액사건을 대상으로 한 증거개시에 관한 소고

Despite prolonged discussions on introducing discovery procedures and multiple legislative attempts, with several related amendments to the Civil Procedure Act currently pending in the National Assembly, institutionalization has not been achieved. This reality simultaneously demonstrates both the necessity and limitations of discovery procedures. For successful introduction of discovery procedures into the Civil Procedure Act, continuous proposals for supplementary measures that align with practical realities are essential. From this perspective, critical considerations include the disproportionate share of small claims cases in first-instance civil litigation, the potential for further expansion of their scope, and the existence of specialized procedures reflecting their unique characteristics. While small claims cases are subject to the Civil Procedure Act, their distinctive nature makes procedural expedience and cost-efficiency particularly significant, with the Small Claims Procedure Act recognizing various special provisions accordingly. However, these characteristics of small claims cases structurally conflict with the nature of discovery procedures. Theoretically, it is inappropriate to apply discovery procedures—which entail significant time consumption, cost increases, and require specialized knowledge—to small claims proceedings that prioritize expedience and cost-efficiency as core values while having limited access to professional assistance. Nevertheless, considering the excessively broad scope of small claims cases in practice, the necessity of allowing discovery procedures to some extent in small claims cases is recognized for the effectiveness of discovery implementation. Therefore, it is necessary to seek a balance between theoretical and practical considerations by designing discovery procedures that reflect the characteristics of small claims cases. This study proposes the following considerations for introducing discovery procedures that reflect the characteristics of small claims cases. First, the use of discovery procedures in small claims proceedings should be exceptionally permitted with clearly defined eligible subjects and scope. Specifically, the criteria and hierarchy for determining whether and to what extent discovery procedures should be allowed are as follows. The most appropriate primary criterion is the “amount in controversy(monetary value).” This is because it is necessary to treat differently the monetary range that can be evaluated as genuinely small and the range that exceeds it. Specifically, cases should be categorized into low-value small claims cases(under 10 million won), mid-value small claims cases(over 10 million won to 20 million won), and high-value small claims cases(over 20 million won to 30 million won). For low-value small claims cases, discovery should be prohibited in principle; for mid-value cases, it should be exceptionally permitted with limited scope when there is bilateral party application and court authorization; and for high-value cases, it should be permitted based on party choice but with scope limitations. The appropriate secondary criterion is “case type.” Regardless of monetary value, the level of information asymmetry varies by case type, resulting in differences in the necessity and importance of discovery, thereby justifying exceptional allowance. Regarding specific permission and scope, monetary value should serve as the criterion, with scope appropriately restricted. The appropriate tertiary criterion is “party choice.” This is because there may be substantial need and value in respecting party autonomy in civil dispute resolution procedures. Decisions on procedural permission should appropriately be based on party application rather than court discretion. Monetary value should also serve as the criterion for determining specific permission and scope. Second, to appropriately control time and costs, procedures should be conducted under court leadership in principle, with court authorization required. When deciding whether to authorize discovery procedures and determining their scope in small claims proceedings, courts should consider whether the “necessity” and “importance” of the procedure are satisfied, whether “minimum necessity” and “proportionality” are met, and the “capability of the parties.” Finally, considering the pace of technological development and consequent changes, it would be desirable for the implementation of discovery procedures in small claims proceedings to begin with pilot programs and expand gradually in stages.