Judicial Management in Asia

Abstract

Civil procedure is a national system administered by the state in order to resolve disputes between private individuals. The state does this by providing, within a limited budget, the physical and human resources required. Looking back over history, it could be claimed that there has never been a single period in time when the parties to litigation have been satisfied with the judgment of the court. It is worth noting that since the mid-20th century, most of the dissatisfaction has been caused by the length of time taken and the cost of litigation. In civil law jurisdictions that use the inquisitorial system, the concept and method of judicial management are different from the adversarial system. There is no such notion as “sit-back passiveness” for court judges. Judges in civil law countries possess a fairly strong power of supervision. From the perspective of judicial management, the most useful tool is preparatory proceedings and it is undeniable that this is the focus of case management. The reinforcement of preparatory proceedings is a trend among most Asian countries. However, we need to bear in mind the procedural characteristics of preparatory proceedings. The preparatory proceedings are not open to the public, which is different from the other supervisory tools. Hence, the problem of a judge wrongfully exercising his/her authority might happen during preparatory proccedings. In particular, the abuse of the judge’s discretion is a serious problem. Moreover, we must not overlook the fact that the exercise of a judge’s discretion during preparatory proceedings and the issue of whether the judge has exercised his/her authority properly are unreviewable. Furthermore, if the authority granted to the judge presiding over the preparatory proceedings is excessive, the handling of a case entirely relies on the judge’s professional conscience, assiduousness and personal capability, which might then lead to distrust in judicial system itself among laypeople. On the other hand, it is also a problem if the judges do not exercise their power sufficiently. In particular, judges must lawfully impose sanctions on uncooperative parties who do not appear on the designated trial date, in order to prevent unnecessary delay and cost. This overly passive attitude of a judge must also be rejected. Lastly, if the preparatory proceedings end with simple preparations for the oral argument, the function of it is too limited. Therefore, efforts to link the preparation process with ADR are essential and the court should actively recommend settlement at the end of the preparatory proceedings and attempt mediation if necessary. It is impossible to resolve all cases with one standard model of civil procedure. Using a one-size-fits-all approach will lead to applying a Cadillac procedure to a Chevy case, or its opposite, relying solely on the case-managing skill of the trial judge. Therefore, having different rules for different cases and regulating the judge’s specific role and authority as a case manager is also a good way to ensure the ideal implementation of civil procedure. It is necessary to improve the litigation system by incorporating highly advanced IT technology. The questions of whether electronic litigation can be entirely substituted for paper litigation or whether the complete digitalisation of litigation is desirable still leave room for further discussion. Nevertheless, the use of IT technology can certainly simplify and expedite proceedings and can reduce the courts’ case load.