미국 민사소송절차에서의 구술변론 관련법제와 실무운용 = Law and Practice Concerning Oral Argument in The Federal Civil Procedure of the United States

다국어 초록 (Multilingual Abstract)

The Code of Civil Procedure of the Republic of Korea has adopted the element of oral argument as the principal means of conducting civil proceedings while simultaneously requiring the submission of written documents in various phases and procedures. Until recently, such orality has not been implemented as stated in the Code, in the actual practice. With the revision of the Code in 2002, however, as the revised Code has adopted the mechanisms assuring further readiness of the parties prior to the court dates and enabling material arguments and findings over the legal positions of the parties and the facts and evidence of the case, oral argument has become an essential tool for conducting the civil litigation in all applicable proceedings. This change has invited a new round of discussions and debates both within and outside the South Korean legal profession on the strengthened orality in the civil proceedings. The split of positions largely between its redundancy repeating the previously stated facts and arguments and its actual and symbolic legitimacy-enhancing role calls for a further assessment of the functions of the oral element in the civil procedure and the larger purpose it may attain in the nation`s justice administration as a whole. As a part of such effort, from the comparative perspective, this article analyzes the characteristics of the orality in the civil procedure in the United States, focusing on the relevant legal provisions and the actual practices mainly as applicable to the federal civil trial under the Federal Rules of Civil Procedure. The characteristics of the federal civil procedure of the United States from the orality perspective include, first, a wide scope of discretion on the part of the court in administering oral hearing notwithstanding the orality as the principal means of conducting a jury trial, second, strong written elements in a nonjury trial with the heightened role of various documents required for submission, third, the required submission of written documents stating the facts and legal positions of the parties at various pretrial motion proceedings, as regulated by the rules of each court and the discretion of the bench, and, fourth, the submission of written statements as the litigants` principal tool for arguing their case and the oral argument permissible at the discretion of the court, in the appellate proceedings. The merits of the strengthened orality in civil justice administration, as discussed in the United States, include, first, the clarity, responsibility and trust that the orality provides for the judiciary, second, the possibility for the court to perceive and understand the positions and arguments of the litigants more precisely and fairly, free of bias and preconceptions, through discussions with the parties before the court including questions and answers, and, third, the actual and symbolic opportunity on the part of the litigants to directly persuade the court. On the other hand, the proponents of the centrality of written elements in civil proceedings argue that, first, the requirement of written briefs and other documents is a realistic alternative solution for the increased burden of caseloads on the court, second, the court should be able to limit oral argument when the court concludes in a specific case that the argument in writing as submitted to the court and not the oral argument substantively and materially affects the decision of the court, and, third, despite certain clear merits of the oral argument, various social costs incurred by the oral argument significantly exceed and outweigh any such merits. The meaning and the weight provided for the oral element under the law and in the actual practice of civil procedure in a specific nation may differ, depending upon the unique understanding shared within that particular nation with respect to what is crucial for the legitimacy of the justice adminstration and for the trust of the public therein. The critical