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

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

3. The Challenges

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

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

6. The Challenges
Growing Caseloads
인구- 사건수

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

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

9. The Challenges
The Radical Change in
Socio-Economic Relations

10. 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?

11. 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

12. The Trend of Reform

13. 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

14. The Reform of Procedural Model

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

16. 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

17. The Prospect

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

19. 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

20. 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)

21. The Prospect
New Approach of A2J – Efficiency
독일 표

22. The Prospect New Approach of A2J – Efficiency 독일 표
Art (Act no 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 of 15 July 1980 : F (800 €)
독일 표

23. 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

24. The Prospect
New Approach of A2J – Balance
독일 표

25. 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

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

27. 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

28. Conclusion

29. 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 ordinarily should be presented in a concentrated final hearing at which the parties should also make their concluding arguments.