The Future of Civil Procedure The Challenges And The Prospects Jan. 21, 2003 October, 2008

Table of Contents The Challenges The Trend of Reform The Reform of the Procedural Model The Prospect of Future Civil Procedure

The Challenges

The Challenges Growing Caseloads More Complexity of Disputes Higher Demand of Public

Number of Cases per Capita(1,000) The Challenges Growing Caseloads Number of Cases per Capita(1,000) 인구- 사건수

The Challenges Growing Caseloads 인구- 사건수

Number of Cases per Judge The Challenges Growing Caseloads Number of Cases per Judge 사건수-민사사건수

The Challenges Growing Caseloads : Why? The Steep Growth of Economy

The Challenges The Radical Change in Socio-Economic Relations

The Challenges Say’s Law The Supply Creates the Demand The Number of Lawyers Say’s Law The Supply Creates the Demand - More Lawyers More Law Suits Is it bad though?

The Challenges : Class Actions Growing Caseloads More Complexity of Disputes - Refinement of Legal Reasoning - Technical Advances - Globalization - Progress of Procedural Law : Class Actions Higher Demand of Public

The Trend of Reform

The Trend of Reform = Civil Law + Common Law Transnational Civil Procedure = Civil Law + Common Law Emphasis on Efficiency vs. Access to Justice Active Embracing of Information Technology Emphasis on ADR

The Reform of Procedural Model

Principle of Oral Procedure The Reform Principle of Oral Procedure New model Old model 2002 2005

Oral Proceeding : Transparency The Reform Old Model New Model : Efficiency Parallel Hearing Repeated Hearing Session Decision Making by reviewing documents 2002 Revision of Civil Procedure Code: Concentrated Main Hearing Session Oral Proceeding : Transparency How to run the Concentrated Session

The Prospect

The Prospect New Model Establishment of New Integrated Model = Concentrated Hearing + Oral Proceeding New Model Oral Proceeding

The Prospect Establishment of New Integrated Model = Concentrated Hearing + Oral Proceeding New Approach of Access to Justice Case Management + Expansion of Legal Aid - Restriction of Appeals

The Prospect New Approach of A2J – Efficiency Case Management <Federal Rules of Civil Procedure, Rule 11. > (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper ... an attorney or unrepresented party certifies that ... (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; Case Management : Differentiation 1. Deterring Frivolous Claims (USA) 2. Raising Litigation Cost (Ger) 3. Restriction of Evidence (Fr)

The Prospect New Approach of A2J – Efficiency 독일 표

The Prospect New Approach of A2J – Efficiency 독일 표 Art. 1341 (Act no 80-525 of 12 July 1980) An instrument before notaires or under private signature must be executed in all matters exceeding a sum or value fixed by decree1, even for voluntary deposits, and no proof by witness is allowed against or beyond the contents of instruments, or as to what is alleged to have been said before, at the time of, or after the instruments, although it is a question of a lesser sum or value. All of which without prejudice to what is prescribed in the statutes relating to commerce. 1 D. no 80-533 of 15 July 1980 : 5 000 F (800 €) 독일 표

The Prospect New Approach of A2J – Balance Case Management Legal Aid 1. Deterring Frivolous Claims (USA) 2. Raising Litigation Cost (Ger) 3. Restriction of Evidence (Fr) Case Management : Differentiation 1. Public Aid : British Legal Service Commission 2. Private Insurance (UK, Ger) Legal Aid 프랑스

The Prospect New Approach of A2J – Balance 독일 표

The Prospect New Approach of A2J – Restriction of Appeal Vicious Cycle Full Hearing 2nd Instance No need to exhaust in 1st Instance Public Demand Insufficient Preparation Appeal Vicious Cycle 프랑스 규정 Insufficient Argument and Evidence Incorrect Decision 1st Instance Good Excuse

The Prospect New Approach of A2J – Restriction of Appeal The Roll of Supreme Court Appellate Court’s Practice 프랑스 Precondition : Strengthening of 1st Instance

The Prospect Establishment of New Integrated Model Interest Groups and Association Regional Authorities Administrative Agency The Function of Dispute Settlement Redistributed 1. E-Filing : Adopted in Payment Order Procedure 2. Change in Courtrooms Establishment of New Integrated Model = Concentrated Hearing + Oral Proceeding New Understanding of Approach to Justice Case Management + Expansion of Legal Aid - Restriction of Appeals Incorporation of New Technology Diversification of Dispute Settlement

Conclusion

UNIDROIT ALI / UNIDROIT Principles of Transnational Civil Procedure 9. Structure of the Proceedings   9.1 A proceeding ordinarily should consist of three phases: the pleading phase, the interim phase, and the final phase.   9.2 In the pleading phase the parties must present their claims, defenses, and other contentions in writing, and identify their principal evidence.   9.3 In the interim phase the court should if necessary:     9.3.1 Hold conferences to organize the proceeding;     9.3.2 Establish the schedule outlining the progress of the proceeding;     9.3.3 Address the matters appropriate for early attention, such as questions of jurisdiction, provisional measures, and statute of limitations (prescription);     9.3.4 Address availability, admission, disclosure, and exchange of evidence;     9.3.5 Identify potentially dispositive issues for early determination of all or part of the dispute; and     9.3.6 Order the taking of evidence.   9.4 In the final phase evidence not already received by the court according to Principle 9.3.6 ordinarily should be presented in a concentrated final hearing at which the parties should also make their concluding arguments.