Case Management in Asia

서지정보

· 발행기관 : 한국민사소송법학회
· 수록지 정보 : 민사소송 / 22권 / 2호 / 371 ~ 407페이지
· 저자명 : 손한기

초록

It is true that recently, the main objective of the case management concept has been to mainly realize the ideology of speed and cost. Also, the most inconvenient aspect of a civil lawsuit experienced by civilian is that it is time consuming and high in litigation cost; while courts are being put in a difficult position, facing the drastically increased number of cases.
Undoubtedly, the necessity for case management has come into the limelight.
It is true that recently, the main objective of the case management concept has been to mainly realize the ideology of speed and cost. Also, the most inconvenient aspect of a civil lawsuit experienced by civilian is that it is time consuming and high in litigation cost; while courts are being put in a difficult position, facing the drastically increased number of cases.
Undoubtedly, the necessity for case management has come into the limelight. But the objective of case management cannot be solely put on the expeditious and inexpensive disposition of cases. Therefore, judges as the case managers should endeavor to manage their case by securing the actual justice of both plaintiff and defendant, and then render a judgement that corresponds with the substantial facts. Particularly, in Asian countries where the number of unrepresented litigations (litigants not represented by lawyers) is high, actual equality between parties should be guaranteed for substantively correct decisions. Therefore, it is necessary for the courts to properly exercise their power to request explanations to make clear of the material aspects of the case and to secure the streamline flow of the proceeding. So, the details mentioned below should be considered in regard to the preparatory procedure.
First, not every case needs to go under a preparatory procedure. Hence, the judge assigned to the case should be able to confirm the nature of the case promptly and meticulously, and decide whether the case requires a preparatory procedure or it can enter into a trial instantly.
Second, the preparatory procedure is non-disclosure. Hence, the problem of wrongful exercise of a judge’s authority might happen during the preparatory procedure. Moreover, we shall not overlook the issue that the exercise of a judge’s discretion during the preparatory proceeding and whether the judge has exercised his authority properly is unreviewable.
Third, if the authority granted to the presiding judge of the preparatory procedure is excessive, the handling of a case is entirely relying on the respective judge’s a professional conscience, assiduousness, and personal capability, and might then incur the distrust in judicial system itself among the people.
It is impossible to resolve all cases with one ordinary set of civil procedure.
Trying to resolve all cases with one set of procedure will lead to a situation such as the application of a Cadillac procedure to Chevy case; or the opposite, sole reliance on the capability of respective judges. Therefore, having differentiated rules for different cases, regulating a judge’s specific role and authority as a case manager is also a good way to realize the ideal implementation of civil procedure.
It is necessary to improve the system engrafting highly advanced IT technology into the litigation system. The questions, whether electronic litigation can substitute paper litigation altogether or whether the complete digitalization of litigation is desirable still leave room for further discussion.
Nevertheless, the use of IT technology can certainly simplify and expedite the procedure itself and can mitigate the case load of the court.

참고자료

· 없음