미국 연방 법제상 디스커버리 의무 위반에 대한 변호사 제재에 관한 연구

Abstract

The discovery research group formed by the Supreme Court Judicial Administration Advisory Council proposed revamping the document submission order system. The group proposed remanding Articles 349, 350(1), and 351 of the Civil Procedure Act to strengthen sanctions against the parties and non-parties to ensure the document submission order’s effectiveness. But the proposed amendment does not specify an important method to increase the effectiveness of a document submission order. The proposal does not call for sanctions against the parties' attorneys.
 Under U.S. federal discovery law and practice, if discovery obligations are violated, sanctions are sometimes imposed not only on the party but also on the party's attorney if certain requirements are met. Because attorneys gain less from a litigation compared to parties, effectiveness can be secured with weaker financial sanctions against the attorneys.
 If a party compensate for the financial losses incurred to the attorney, financial sanctions against an attorney may be less effective. This is because if a party compensates the attorney's financial losses, both the party and the attorney may benefit.
 However, even if collusion is expected between the parties and their attorneys, this can be prevented to some extent by designing a system so that the court can impose stronger non-monetary sanctions on the attorneys. If it is suspected that an attorney has colluded with a party, then the court may directly or notify the Korean Bar Association to impose a disciplinary action such as suspension or expulsion, which may limit the attorney's qualifications.