현행 문서제출명령 제도 보완에 관한 소고

Abstract

Although the current document production order system has been evaluated as a generalized obligation to produce documents, it has limitations due to the fact that it recognizes a wide range of exceptions and lacks strong and effective sanctions for non-compliance with document production orders. Article 344(2) of the Civil Procedure Act stipulates that general documents are subject to the obligation to produce, but excludes documents possessed by governmental entity. If the subject of a document production order is a third party, the penalty is a fine of not more than 5 million won, and if the subject of the order is a party, the court may recognize the other party's claim that the document is true. In order to overcome the limitations of the document production order system and improve its effectiveness, it is necessary to expand the material and personal scope of the obligation to produce, i.e., documents possessed by governmental entity should be included in the same way as general documents, and information stored in electronic form should be expanded to be submitted. Sanctions for production orders should also be strengthened. Where documents are under the control of the other party, such as in modern litigation, it is reasonable to assume that a party's failure to comply with a production order is a prima facie case. In addition, the discretionary sanction method should be changed to a mandatory sanction method, and the means of sanction should be diversified, such as increasing the penalty. In addition, it is desirable to change the procedure for appealing an order to produce documents to an appeal procedure at the appropriate level instead of an immediate appeal.