미국 연방민사절차상의 사건관리(Case Management)제도-한국에의 시사점을 중심으로-

Abstract

With the revision in 2002, as the revised Code of Civil Procedure of the Republic of Korea 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 within and outside the legal profession of Korea upon this 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 nations justice administration as a whole. As a part of such effort, from the comparative perspective, thìs article analyzes the case management system in the civil procedure in the United States under the Federal Rules of Civil Procedure, from the observation that a well-administered case management system is critical for the relatively strengthened orality in civil proceedings in general and also particularly at the trial stage.

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 insight and the lesson we may draw from the U. S. experience in this regard may perhaps lie in the way they systemized the case management especially at the pretrial stage as the infrastructure for actual administration of oral elements in court proceedings, as well as their pragmatic effort to balance the oral and the written elements in the civil proceedings pursuant to various resources that are indispensable for a successful administration of the oral argument. The specific design of a system concerning the respective weights of the oral element and the written element for advancing the argument and conducing the litigation concerns the question of efficiency that should be judged in terms of the various conditions that a particular society faces, such as the workload of the court, the number of the attorneys, and the resources and infrastructure available for the judicial institutions including those for the production and maintenance of the court rεcord for each phase of the proceedings. At the same time, ultimately, such a design of a system has to do with the question of how faimess and justice is perceived and appreciated by the public in terms of the public trust in the litigation procedures and the justice administration, thus how the legitimacy of the procedures， substance and outcome of the litigation may be attained and promoted.