The Ramifications in Implementing the U.S.-Style Discovery System To Enhance Evidence-Gathering in Korea

Abstract

The Korean judiciary has been subject to heavy criticism due to the insufficiency of fact-findings at trial. Such lack of fact-findings has been attributed to several factors. First, there is no strong mechanism for evidence- gathering at trial proceedings which tend to bog down with a series of long and ineffective exchange of documents between the parties. Secondly, fact-findings are allowed at appellate courts in Korea so that litigants expect to continue fact-gathering at appellate level, without committing to the complete fact-finding at trial courts. There has been significant debate surrounding the necessity of addressing the issues pertaining to the trial procedures in Korea—especially on the fact-gathering system. As one of the most effective ways to do so, the U.S.-style discovery system has been considered. There are particular features of the U.S. discovery system that the Korean judiciary and the bar have shown a strong inclination towards adopting: party-initiated evidence gathering; prescheduled discovery and trial dates; and mandatory initial disclosures.
 However, in order to successfully adopt the U.S.-style discovery system, gaining an understanding of the drawbacks of the U.S. discovery is imperative —adversarial and competitive lawyering in discovery; insufficient judicial roles; problems of mandatory initial disclosure and notice-pleading; and abusive use of discovery. In addition to the analysis of the above problems, this article also discusses the lessons that the Korean judiciary and bar should learn from the American experience before adopting the discovery system. Lastly, it makes several proposals for the Korean judicial reform that can contribute to the successful implementation of the new discovery system.