미국 배심재판에서 배심원 후보자의 위장 침입의 문제점과 배심원 선정방법의 개선방안에 대한 연구

공영호 한국민사소송법학회 2013 민사소송 Vol.14 No.2

One of the possible jury misconducts is that a prospective juror hides his prejudice/bias during jury selection process in order to be selected as a juror and to attempt to lead the jury to reach a verdict in a way that he desires. The reasons for such jury misconducts may vary. He may want to extort money from a party in exchange of a promise for a verdict favorable to the party. Or it may have something to do with a vendetta against a party or financial gain for him that is expected from a verdict. The jury foreperson in Samsung v. Apple jury trial that took place in the U.S. District Court for the northern district of California had sued a company named Seagate Technology, Inc, that is in business relationship with Samsung. Although this litigation experience could be considered as a strong ground to suggest that he had a prejudice against Samsung, he did not disclose this fact. He claimed that during the voir dire he was not specifically requested to disclose all litigation that he has been involved. However, it appears from the trial records that he was specifically asked during the voir dire as to whether he or his family members were involved in any litigation. Had Samsung known of his prior litigation with Seagate, it seems very likely that Samsung would have excluded him from the jury by exercising challenge for cause or peremptory challenge, at least. After the jury reached the verdict against it, Samsung filed a motion for a new trial claiming that the foreperson committed a misconduct during the voir dire by failing to disclose his prior litigation experience. The first step to discover a prospective juror with prejudice or ulterior motive is to retain jury consultant and to use scientific jury selection methods. One of the scientific jury selection methods is to conduct telephone surveys on people who are randomly selected among the residents in the jurisdiction which is followed up with face-to-face interviews with some of them. The surveys are aimed at investigating and finding out demographic characteristics such as age, sex, ethnicity, education, occupation, religion and political affiliations that can be favorable or unfavorable to the party. Some courts or jurisdiction make the list of potential jury pool public or available to the parties. With this list, jury consultants are able to investigate the personal backgrounds and private characteristics of specific prospective jurors. The internet means such as googling or facebook provide jury consultants with efficient tools to find out a lot of useful information on prospective jurors. Also, jury consultants can organize mock jury trial in which mock jury listens to arguments, reviews evidence and deliberates. Through mock jury trial, attorneys can evaluate and formulate more effective trial strategies and tactics. Furthermore, attorneys may be able to learn the characteristics and types of jurors who would be favorable or unfavorable to their clients. Also,jury consultants can organize shadow jury who observes the actual trial in courtroom and gives feedback on trial from which attorneys can improve their trial strategies and tactics. Scientific jury selection methods tend to be expensive. In absence of public records or tangible evidence, it may be almost impossible to discover prejudice or bias of individual juror. Consequently, attorneys rely on voir dire process 미국 배심재판에서 배심원 후보자의 위장 침입의 문제점과배심원 선정방법의 개선방안에 대한 연구 / 공영호 391to find out prejudice or bias of prospective jurors. Jury selection process consists of the summoning of prospective jurors,the written questionnaire and oral examination of prospective jurors in courtroom (Voir Dire). Prospective jurors who have been summoned fill out written questionnaire privately prior to the official voir dire. Usually,they can be more candid and straightforward in responding to written questionnaire that can be even...

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

공영호 한국민사소송법학회 2023 민사소송 Vol.27 No.2

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.

세미나 ( 농학 1호관 1101호 ) / 해외조림사업의 현황과 전망 : 한솔포렘의 해외조림사업 ( 호주 , 뉴질랜드 )

공영호 한국임학회 1999 한국임학회 학술발표논문집 Vol.1999 No.-

제4주제 발표 및 토론 : 외재분야 시장상황 및 전망

공영호 한국임학회 1998 한국임학회 심포지엄 Vol.1998 No.-

특집 : 러시아 공간의 구획과 그 특성에 대한 연구 ; 러시아문화 연구방법론에 대한 고찰

공영호 경희대학교 비교문화연구소 2002 비교문화연구 Vol.5 No.-

Applicability of the Duty to Read Rule to Non-English Speakers - With a Focus on the Discussions in the U.S. -

공영호 전북대학교 부설법학연구소 2015 法學硏究 Vol.46 No.-

Under the duty to read rule, a person who signs a contract without reading it is responsible to the contractual term even though he did not read the term. The issue is whether this duty should be applied to non-English speakers who, due to their linguistic deficiency, could not read the contract which is written in English. A more specific issue arises when they enter into consumer contracts with various kinds of businesses and industries. These consumer contracts usually contain boilerplate terms in the forms of standardized or adhesion contracts which often contain unfavorable terms to the consumers. The boilerplate terms are difficult to comprehend and are neither given proper notice nor fully explained to the consumers. Thus, the consumers do not have a meaningful and voluntary choice in the bargaining process which can be equated with the lack of actual consent. However, since the consistent and predictable interpretation of contract terms is necessary to achieve the contractual purposes, the boilerplate terms should be recognized as valid and enforced as such, which is in accord with the freedom of contract doctrine. Boilerplate contracts play the important roles in the market system of mass production and distribution. The contractual bargaining processes are facilitated and streamlined because of the standardized form and boilerplate contracts which will lead to the reduction of transaction costs and merchandise prices for consumers subsequently. If the boilerplate terms must be overhauled as a whole, that could mean enormous inefficiency in the operation of national market thereby causing huge adverse effects to the national economy. The duty to read rule comes with several benefits such as the enhanced value of written contracts, the preservation of fairness to the seller, the protection of sellers' reliance interest, the enhanced predictability and enforceability of contracts and the incentive to read contracts. However, this duty is inapplicable if the consumer can prove the existence of fraud or unconscionability. It can be argued that the duty to read rule should not apply to non-English speakers. First, non-English speakers should be entitled to the same level of legal protection that minors and mentally incompetent people have. Even if they sign a contract, the other party cannot consider their manifestation as assent under the objective doctrine if the other party knew or had a reason to know that they are too young or mentally incompetent to contract. Second, non-English speaking parties should be excused from the strict application of the duty to read rule because there is a high degree of difficulties and obstacles for the non-English speaking parties in proving the affirmative defense of fraud. On the other hand, the strict application of this duty is supported by Rest. § 19(3): “the conduct of a party may manifest assent even though he does not in fact assent,” and the contractual rule that the meaning of a term is to be interpreted under the more reasonable party's understanding. Non-English speakers should be bound by its terms as long as the seller did not know or had no reason to know that the non-English speaker would not have signed a contract if he had known that the contract contained a specific term. Also, when a non-English speaker signs a contract without seeking its translation, it would be reasonable for the other party to presume that the non-English speaker assents to the terms. It seems to be unfair and unjust to apply the duty to read to non-English speakers strictly due to their language barriers. So it is proposed that the duty to read rule be supplemented with the duty to provide translation by the contract drafters. Providing translation will be much more efficient for the sellers who have greater resources and are in a better position to articulate the contract terms than the non-English speakers who need to take time and efforts individually in translating or findi...

An Analysis of Rule 11 of the United States Federal Rules of Civil Procedure as a Measure to Deter Frivolous Litigation

공영호 한국민사소송법학회 2011 민사소송 Vol.15 No.1

1938년에 미국 연방민사소송규칙 이 제정되면서 민사 소송시 소장에 대한 격식이 많이 완화되었는데, 그 중에 소장에 사실관계 내용을 상세하게 기재하지 않아도 되게 되었다. 그 결과로 근거 없는 소송(frivolous litigation)이 시작되어도 피고의 소송기각신청이 승인되기가 어려워졌다. 1938년 연방민사소송규칙 제11조에 보면 변호사가 법원에 소장을 제시할 때는 ‘정당한 이유’가 있다는 것과 사건 진행을 지연하려는 부적절한 의도가 없다는 것을 보증해야한다. 하지만 여기서 ‘정당한 이유’라는 단어가 정확하게 정의 되어있지 않았고, 다른 부적절한 의도(예, 상대방을 괴롭히거나 상대방이 불필요한 소송비용을 부담하게 하기 위한)를 가진 소송에 대해서는 규제조항이 없었다. 그래서 이 조항은 근거 없는 소송의 남용을 방지하는 역할을 잘 감당하지 못했다. 미 의회는 근거 없는 소송이 남용되는 것을 방지하기 위해 1983년과 1993년에 두 차례에 걸쳐서 제11조를 개정하였는데, 1993년 수정안 주요부분 중에서 첫 번째로는 변호사가 소장이나 그 외 법적 문서를 법원에 제출하거나, 어떤 법적 주장을 하기 전에 우선 합리적인(reasonable) 조사를 해야 할 의무가 있다. 두 번째, 소송시 부적절한 의도(예, 절차 지연, 상대방을 괴롭히거나 불필요한 소송비용 초래)가 없다는 것을 보증해야한다. 세 번째로는 자신의 법적 주장이 기존의 법을 수정하거나 파기하기 위한 것일 때에는 그 주장이 타당성이 있고, 근거 없는 주장이 아니라는 것을 보증해야한다. 변호사가 소장을 제출하거나, 어떤 법적 주장을 하기 전에 우선 합리적인 조사를 하였는지의 여부는 객관적 테스트에 의해 결정되는데, 이는 비슷한 상황에 있는 적당한(reasonable) 자질이 있는 변호사가 어떠한 방식으로 사실관계를 조사하고 법률 조사를 해야 하는 가에 따라 결정된다. 그리고 자신의 법적 주장이 기존의 법을 수정하거나 파기하기 위한 것일 때에는 그 주장의 타당성도 역시 객관적 테스트에 의해 결정되는데, 그 법적 주장이 완벽한 근거에 기초할 필요까지는 없으며, 다만 어는 정도의 타당성을 보여주면 된다. 근거 없는 소송에 관한 변호사의 역할에 대하여 두 가지의 견해가 있는데, 첫 번째로 책임론적 변호사 역할의 원칙(Responsible Lawyering Approach)인데, 이것은 변호사의 법원과 정의 집행에 대한 의무를 강조한다. 진실만을 나타내야 하기 때문에 근거 없는 소송은 허용되어서는 안 된다고 주장한다. 반면, 당사자 주의 변호 원칙(Adversarial Advocacy)에 의하면 변호사는 의뢰인을 열성적으로(Zealously) 변호해야(Represent) 하는 의무가 있으며, 부당하고 불공평한 기존의 법이나 관습에 대항해야 한다고 주장한다. 위 두 원칙 중 책임론적 변호사 역할 원칙을 너무 엄격하게 적용하면 의뢰인이 자신을 대리해서 기존의 법에 과감하게 도전할 수 있는 변호사를 구하기 어렵게 되는 등 대중의 권익보호에 장애가 될 수 도 있다. 그래서 위 두 원칙 중에 하나를 무조건적으로 적용하기 보다는 각 사건 사안의 차이점을 충분히 고려한 후에 유연하게 대처할 수 있는 자세가 필요하다. 근거 없는 소송에 대처하는 기관으로 각 주마다 변호사 협회(State Bar)가 있는데, 변호사 협회의 역할 중에 하나가 변호사 윤리 규정을 확립하고, 변호사가 윤리 규정 위반 시 징계조치를 취하는 것이다. 변호사 협회는 절차적인 면을 중시하고, 근거 없는 소송문제를 다루...

Judge Recusal System in the U.S. and Korea - With a Discussion on How to Reduce Preferential Treatment of Former Judges -

공영호 경희대학교 법학연구소 2016 경희법학 Vol.51 No.4

When the existence of conflict of interest or bias will prevent the judge from rendering fair and just decision, it may become necessary for that judge to recuse himself or herself. However, if the judge refuses to recuse sua sponte or ignores the necessity of recusal, it will be important for an adversely situated party to request a recusal by filing a motion to that effect. The recusal of judges either sua sponte or by motion would be important in guaranteeing the fairness of the judicial rulings by removing the actual or appearance of bias or conflict of interest. The downside of judge recusal is that some attorneys or parties may try to abuse it as a tactical matter to delay the trial process or simply to replace the presiding judge with the one whom they prefer. Also, a judge’s recusal sua sponte should not result in a situation where a party loses a right to appeal. A practical concern hampering a party’s motion to recuse exists due to the reality that the same judge whose impartiality was challenged will continue to hear and decide the case once the motion is denied. The U.S. Congress provides the standard for judge recusals which calls for the recusal of a judge when “his impartiality might reasonably be questioned.” This objective standard requires a judge to recuse himself only if there is an appearance of bias let alone the existence of actual bias. But a problem still exists in that the presiding judge is the same judge who makes the final decision as to whether or not his interest was sufficient enough to warrant recusal. The current appeal process as to the non-recusal decision to the appellate courts would not provide an adequate remedy. It seems that there are two important and effective measures to deal with the issue associated with judge’s denial of recusal requests. First is the creation of independent board/panel which should review the facts and determine the appropriateness of the judge’s decision not to recuse. Second is the requirement that the judge who declines to recuse submit the written opinion to show the reasons not to recuse so that arbitrary and capricious decisions may be verified. In Korea, the practices have been ‘customarily’ engaged by the former judges who became lawyers by attempting to influence the courts by abusing their previous judgeship or personal relations with the presiding judge. The most effective measure against the attempts to interfere with judicial administration would be to use the judge’s recusal system in the objective and strict way as warranted. If the judge does not recuse sua sponte despite the existence of actual or apparent bias under the objective standard and the party files a motion to recuse, such motions should be heard and decided by an independent board. Also, the courts should re-assign judges when there is a conflict of interest or a possibility of the attorney’s tempering of judicial administration. And the judges whose impartiality can be reasonably questioned due to the public relationship or private connection with the lawyer in case should freely request the courts to re-assign the case.

Are the Jury Trials 'Vanishing' in Korea?- With a Discussion on Comparative Perspectives of the American Jury Trials -

공영호 충북대학교 법학연구소 2020 法學硏究 Vol.31 No.1

The rate of jury trial requests and the rate of actual jury trials conducted in Korea has declined, raising a concern as to whether the public interest and demand in jury trials are diminishing in Korea. There are several factors that have contributed to the diminishing jury trials. The first factor is related to the criticism on the competency and emotional bias of lay jurors as to whether they can make right decisions based on the evidence and testimonies presented at trial. The second factor is that jury trials are believed to cause a lot of burden to the court system, prosecutors, and defense attorneys and that there are problems in assuring that defendants make informed decisions on jury trial requests. And the third factor is that judges have exercised wide discretion in deciding jury trial requests. The fourth factor is that currently there are some concerns in the management of jury trials because of time constraint. In this article, I addressed the merits of each factor and the related concerns. First, I responded to the criticism over jurors’ competency and emotional neutrality by arguing that their capacity has been underestimated and their role misunderstood. Secondly, I addressed the concern about the burden to the courts and attorneys. Third, I proposed that defendants should be provided with adequate and sufficient information so that they can make informed decision on jury trial requests. Fourth, the judges should not exercise their discretion too arbitrarily in denying jury trial requests. Fifth, more sufficient time should be allocated to voir dire selection so that potential jurors with biases or conflicts of interest can be screened out, and trial time should be extended when a large quantity of evidence and number of witnesses necessitate it. Jury trials should not remain merely as a symbolism for democratic judiciary. They should remain as the bulwark and beacon of democratic process in which public can participate in judicial decision-making along with the judges. Inconvenience from conducting jury trials should not be used as an excuse for shunning jury trials. Unfair trials should not be an option for criminal defendants or any parties for that matter.

The Hegemony Struggle between President and Congress over War Power Authority and the Role of the Judiciary in the United States - With a Discussion on President Trump’s Travel Ban and the Judicial Decisions -

공영호 단국대학교 법학연구소 2019 법학논총 Vol.43 No.4

Under the U.S. Constitution, the war power is not given exclusively either topresidents or Congress as both branches share the war power authorities. Throughout the political history of the United States, the presidents and Congresshave struggled over war power authorities. It is noteworthy, however, thatpresidents have usually wielded more dominance and that Congress, due to itslimitation as a collective decision-making body, has been passive and acquiescentto presidential exercise of war power. However, presidents and Congress are not the only governmental branches thatare involved in making the war policies. The judiciary has its authority toadjudicate legal disputes concerning the war power authorities and related issues. The judiciary can check and curb the excessive exercise of presidential war powersbecause of its judicial review power and because it is not restricted by thelimitations that Congress has. The judiciary can play a significant role in changingthe directions of the war efforts and policies. For example, the Supreme Courtruled against the Bush administration by rejecting President Bush’s executive orderssetting up the detention facility at Guantanamo Bay and establishing procedures todetermine the status of detainees as to whether they were unlawful combatants. Also, the judiciary has exercised its judicial review power effectively inYoungstown case in which the Supreme Court supported the position of Congress over domestic matters in terms of war power by holding that the regulation ofsteel mills was the prerogatives of Congress and that Congress had the power tofund and support the war by using the means available domestically. But the moreimportant lesson from the Youngstown case is that the judiciary is the finaldecision-making body on the Constitutional interpretation as to which branch hasmore authorities in specific war making policies. When President Trump issued executive orders banning the entry of foreignnationals from seven Muslim countries (“Travel Ban”), the orders were struckdown by the federal District courts and Court of Appeals. However, the SupremeCourt reversed the lower federal court decisions by upholding the travel banalthough the Trump administration’s argument that the travel ban was necessary fornational security was not supported by merit or substance. However, it is essential that the judiciary—especially the Supreme Court—remains as a counterbalance to presidential overreaching with respect to theexercises of war powers by exercising its judicial review power adequately. Especially when the president and Congress are in dispute concerning war powerauthorities, the judiciary should play an important role of the neutral andindependent decision-maker on the constitutional interpretation by rising above theparty-line politics and politicized decisions.