미국 민사소송절차에서의 구술변론 관련법제와 실무운용

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...