A study on the Ways of Improving the Litigation Aid System   In civil proceedings, it is a basic principle that litigation costs are borne by the litigants. However, the courts are operating the Litigation Aid System to guarantee the constitutional right to trial even for those who lack the financial capacity to pay litigation costs. In the former Civil Procedure Code, litigation aid was regarded as a remedy for the poor based on the grace of the state; however, in the current law, it is regarded as a system to realize the philosophy of the welfare state in the 20th century. Korea’s Litigation Aid System which has been in force for more than 60 years with the enactment of the Civil Procedure Code, has been further developed through the revision, and is well-established as an effective system with relaxed requirements and expanded scope. However, the reality is that the Litigation Aid System is still not active due to various restrictions. This research report investigates the problems of the Litigation Aid System in respect to the legal basis, budget, requirements and effects, and operation method, and suggests what our system should aim for in the future, based on the implications obtained from comparative reviews of the litigation aid systems of other countries. To begin with, in terms of the legal basis, although the Litigation Aid System is one of the important systems related to the guarantee of “right to trial” which is a basic right under the Constitution, some matters are stipulated by the established rules that are only internally binding instead of the laws or rules that are externally binding. This research report examines that point and emphasizes the need to elevate the regulations on such matters to Supreme Court Regulations. Next, the budget for litigation aid is allocated by the Judicial Service Promotion Fund, which is raised by the court's deposit contribution fund, and its operation is very unstable. This report considers this issue and suggests how to allocate and secure the budget for stable operation, such as the change from fund to general accounts, the establishment of special accounts, etc. Then, in terms of litigation aid requirements and effects, it is necessary for the development of the Litigation Aid System to review and focus on the relaxation of litigation aid requirements, the expansion of its scope, the diversification of its effects, etc. Last but not least, by examining operational problems, the future directions of the Litigation Aid System are suggested from different angles; activation of litigation aid based on the principle of ex officio; expanded application of the Designated Agent System; seeking the ways to prevent prejudice on the merits and abuse of the Litigation Aid System; cooperation with the Korea Legal Aid Corporation, etc. The systems are constantly evolving in order to use limited resources efficiently. In this context, it is expected that the Litigation Aid System will also be improved to contribute to strengthening the people's right of access to justice, and it is hoped that this research report will contribute to this development.    

A Study on Judicial Reform in Singapore   Singapore's judiciary is internationally well-known for its integrity, impartiality, and efficiency in its trials. Singaporeans' trust in the Singapore judiciary is also high, which is well reflected in the public perception survey conducted by the State Courts of Singapore in 2020. However, the Singapore judiciary has not always received such positive views. Until the late 1980s, the Singapore judiciary not only had issues such as backlogs, inefficient judicial administration, and limited access to courts, but also the citizens’ trust in the judiciary was not very high. Various measures were implemented to solve these issues, but with little success. After analyzing the problems of several measures previously implemented in the 1990s, the Singapore judiciary re-implemented judicial reform measures based on a new approach. It is evaluated that many positive effects of the judicial reform measures implemented at this time have changed the institutional nature of the Singapore judiciary and laid the foundation for the Singapore judiciary to now be highly regarded. This research report takes Singapore's judicial reform as the main subject of analysis and aims to explore in general Singapore's judicial reform carried out in the 1990s, when the Singapore judiciary began to address problems that persisted through the 1980s and transform itself into an efficient and highly regarded judiciary, and then examine what implications Singapore’s judicial reform can give us. Specifically, this report begins with an overview of the Singapore judiciary, then describes the problematic circumstances that led to judicial reform; analyzes the measures taken by the Singapore judiciary prior to judicial reform in the 1990s; analyzes the characteristics and core strategies of judicial reform carried out during the 1990s, the goals and means of the judicial reform, and its effects. In addition, this report analyzes the characteristics of Singapore's judicial reform and concludes with a discussion on what implications those judicial reforms might suggest for us.  

Research on the Instance System for Administrative Cases Concerning Fair Trade   The Korea Fair Trade Commission (hereinafter referred to as “KFTC”), as a collegiate administrative agency under the authority of the Prime Minister, administers and enforces laws and regulations, including the Monopoly Regulation and Fair Trade Act (hereinafter referred to as “Fair Trade Act”), which functions as a fundamental law of competition. In the event of violations of the Fair Trade Act, KFTC imposes corrective measures: impose surcharges, issue corrective orders, send warning letters, etc. In accordance with article 100 of the Fair Trade Act, the Seoul High Court has jurisdiction over any lawsuit contesting the administrative actions of the KFTC, and the Supreme Court hears the cases on appeal. Accordingly, administrative cases concerning fair trade (hereinafter referred to as “fair trade cases”) are carried out in two-instance court proceedings. Critics have pointed out problems with the two-instance trial system for fair trade cases, and have argued that three-instance system should be available for fair trade cases as it is for general administrative cases. Related amendments to the law have been submitted several times. The debate on the instance system for fair trade cases involves issues relating to the scope of the court's jurisdiction and court specialization. Therefore, it needs to be studied comprehensively and systematically in the perspective of judicial policies as well. The main arguments for maintaining the two-instance system for fair trade cases include the need for a high level of expertise in judging violations of the Fair Trade Act, the adverse effects of prolonged litigation, the existence of alternative measures to protect the rights of the accused such as making amendments to the Fair Trade Act, etc. On the other hand, arguments of the critics who are for the three-instance system include the need for protection of the rights of the parties in accordance with the expanded scope of the right to access to courts, the necessity for the independence of the KFTC, existing problems related to the quasi-judicial proceeding by KFTC, the controversy over the KFTC’s unseparated authority to conduct investigations and to adjudicate, the need for balance between regulatory actions of the KFTC and other agencies, etc. The debate on the instance system for fair trade cases is linked to the issues of the independence and regulatory expertise of the administrative agency, prompt resolution of disputes by courts, protecting the parties rights through expanding the scope of the right to access to courts, quasi-judicial administrative proceedings, etc. In this context, deciding on which instance system to adopt for fair trade cases is a matter of establishing a legislative policy by balancing the advantages and disadvantages of the two system. In order to maintain the two-instance system for fair trade cases the following requirements must be met: Strengthen the independence of the KFTC; Enhance fairness by separating the KFTC’s power to investigate and adjudicate; Guarantee substantive due process and legal representation; Contain individual and dissenting opinions in adjudications if the adjudication does not represent in whole or in part the unanimous opinion of the commissioners. In case the three-instance system is introduced by a statute revision, legal uncertainty may increase as litigations take longer. Therefore, it is necessary for the court to reduce the appeal rate by improving fact-finding hearings, increase the number of professional judges, and establish specialized chambers in courts. The KFTC may also consider having career groups such as “financial examiner” (tentative name) and professional advisors engaged in the process of fair trade cases, and having the KFTC officials dispatched to courts. Furthermore, in order to balance the advantages of the two systems for fair trade cases, another possible option would be adopting both systems for different cases: Applying two-instance system for the cases where the amount of the surcharge imposed does not exceed a certain level, and three-instance system for the rest. Courts have accumulated considerable experiences and gaind expertise in fair trade cases, and judicial interpretations have contributed to the fair trade system, protecting the rights of people as well. Considered from perspectives on judicial policy, the instance system for fair trade should focus on the prompt resolution of cases based on the judicial expertise and on the protection of the peoples’ rights through court's substantial fact-finding. If three-instance system becomes available for fair trade cases, it would be a way of enhancing judicial fairness, judicial transparency and judicial specialization. In this context, it is considered necessary to actively discuss the introduction of the three-instance system for fair trade cases.    

Judicial Remedy Procedures for Social Security Cases and Recommendations for Procedural Improvement   The demand for social protection is expected to grow due to social changes. We are experiencing changes in demographic structure, employment relationships, and family relationships. However, there has been little public awareness of social security cases in South Korea. Social security schemes should be based on the reason of State(la raison d'État), which guarantees the basic conditions of people's lives. Low awareness of social security cases seems to reflect relatively low public concern for the basic living conditions. Reviewing the procedures for social security appeals has the significance of preemptively preparing for the social security reform and reminding the responsibilities of the State of the people.   The objective of this study is to provide a comprehensive overview of the current social security appeals procedures in South Korea and to draw policy implications for making better judicial procedures. Social security litigations in South Korea can be categorized into those related to social insurance, public assistance, social compensation, and social welfare. In order to increase access to justice, a comprehensive understanding of the current state is required. This study focuses on the status quo of appeal procedures.   The research question is to what extent social security cases are resolved through courts in Korea. It primarily depends on whether the complaints and appeals process is clear and accessible. In order to answer the question, the chapters describe the nature and characteristics of social security cases reviewed in the context of examining the system of social security law (Chapter 2), the social security case appeals procedure, including administrative and judicial procedure (Chapter 3, Section 1), current status and characteristics of judicial procedures of social security appeals (Chapter 3, Section 2), and how social security cases are dealt with in developed countries (Chapter 4).   The main findings of this study are the following:   Administrative complaints and appeals about social security benefits are differently processed according to the relevant laws. In order to prevent any possible confusion, administrative complaints and appeals procedures are in the need for structural reorganization. In terms of judicial procedures, although most of the social security cases are resolved through administrative litigation in courts, they are distinct from general administrative litigation. Relevant laws are complex, vast, and frequently revised, which makes it difficult even for experts to accurately understand the contents. Parties to social security cases are especially in need of social protection as administrative decisions often have a long-term effect on their economic life (Chapter 2).   Administrative remedies have advantages over judicial remedies in that simple objections are possible and results can be received within a short period of time. However, systematization between the procedures has yet to be achieved. Most social security cases are handled as administrative litigation in courts. In this study, administrative litigation procedures are reviewed focused on the method of filing a lawsuit, the court of competent jurisdiction, filing period, representation in litigation, litigation costs, etc. In terms of procedures in civil litigation, injunctions granted at the discretion of courts are recognized under the Act on the Prohibition of Discrimination against Persons with Disabilities. Other domestic remedies include the complaint process of the National Human Rights Commission and the order for correction from the Ministry of Justice, which are also recognized under the Act on the Prohibition of Discrimination against Persons with Disabilities (Chapter 3).   There exist different types of courts that have jurisdiction over social security cases. In many countries, judicial courts handle social security cases (Type 1). Some countries have specialized courts (Type 2). Some others have administrative proceedings or tribunals handle most of social security cases and courts exercise limited jurisdiction. In this study, the cases of France (Type 1), Germany (Type 2), England and the United States (Type 3) were reviewed. While differences appear among them, many similarities are found in basic principles. Accordingly, two or more countries’ appeals systems share the following characteristics : - Simple, convenient, and easy procedures are provided for parties to social security cases. For example, complaint forms are easy to fill out and jurisdiction is conferred on the court of the domicile of the plaintiff. - Effective remedies are available. For example, interim measures and injunctive relief are granted by courts. - Claimants bear minimum costs of litigation. If they are unable to afford to pay for legal costs, they may apply for legal aid. - Until a certain level of the appeal process, plaintiffs are allowed to defend themselves without the help of an attorney. For this purpose, even if the person is not a lawyer, persons with certain qualifications (e.g., family relationship, workplace relationship, public interest group, etc.) governed by specific legislation are able to assist or represent the party in a social security case (Chapter 4).   Based on the aforementioned findings, this study proposes the introduction of interim measures, injunctive relief and reconciliation recommendations in administrative litigations. It is also important to provide plaintiff-friendly complaint form in courts and make rules to minimize the cost of litigation for plaintiffs. Some of the ideas are for the relatively distant future. It would be desirable to adopt the system of jurisdiction conferred on the court of the plaintiff’s domicile, representation by non-lawyers, and lay assessor when the systems of social security adjudication and litigation are well-established. In terms of court organization and administration, it would be necessary to establish social security chambers in courts and training programs related to social security litigation in Judicial Research and Training Institute. Once the social security chambers are established, detailed statistics would become available as well. Lastly, it is necessary to expand the Legal Access Center in courts to substantially support the socially disadvantaged individuals.  

A Study on the Particularity of Sexual Violence Crimes and the Jury Instructions in Korean Jury Trial   Crimes are without any regard to victims. The same is also true for sexual violence crimes. Nevertheless, we have various prejudices against sexual violence crimes, especially against victims of the crimes. Concerns are raised that such prejudices may be manifested in Korean Jury Trials for sexual violence crimes. In fact, looking at a comparison of acquittal rates in Korean Jury Trials for violent crimes from 2008 to 2020, the acquittal rate for sexual violence crimes stands significantly high at 21.88% compared with manslaughter at 1.68%, robbery at 8.00%, and bodily injury at 6.24%, suggesting that such concerns are being realized.   Therefore, in the first place this study examines the significance of gender stereotypes and rape myths, and the mutual relationship between them, and further scrutinizes how these prejudices are manifested in reality. Also, it leads to ascertain that public misconceptions about sexual violence crimes, by elucidating the discrepancy between public perceptions of sexual violence crimes and actual sexual violence crimes and the disparities between men and women, and moreover the variance among year-on-year public perceptions.   Then, in order to determine the reason why the ratio of acquittals in Korean Jury Trials for sexual violence crimes is three to nine times higher than that of other violent crimes, this study seeks to identify whether or not the rape myths affect the jury’s determination. It also confirms that these rape myths can be corrected through jury education, etc., to be administered by judges, thereby it clarifies that jury instructions are needed for the judge to explain to the jury in Korean Jury Trials.   Accordingly, the study reviews both the U.S. and UK jury instructions to prepare guidelines for judges to give appropriate explanations to the jury in Korean Jury Trials for sexual violence crimes, and based on this analysis, it suggests some guidelines on major concepts and stereotypes that are called into question in Korea.   The establishment of guidelines to ensure that judges explain them to jurors in Korean Jury Trials for sexual violence crimes has been sought by the reflective consideration of unfair deliberations and verdicts presumably influenced by gender stereotypes and rape myths. This aims to correct false prejudices and consequently achieve fair trials. In other words, this is to normalize abnormalities and replace unfairness with fairness, which is ultimately at the realm of the court's duty to secure fair trials.      

Study on the Resolution of International Judicial Friction Arising From Pre-trial Discovery   In principle countries in the civil law system such as Korea do not allow fishing expedition in the evidence-taking, whereas the United States widely permits the submission of materials for the purpose of fishing expedition through pre-trial discovery procedure. Korea made a particularized declaration pursuant to Article 23 of the “Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (hereinafter “HCCH Evidence Convention”)” that it will not execute letters of request issued for the purpose of obtaining pre-trial discovery of documents under certain conditions at the time of accession. Therefore, the United States shall not request Korea to submit the documents for the purpose of pre-trial discovery within the scope that Korea has expressly excluded through the above declaration.   Nevertheless, the U.S. courts are requesting the other Contracting States of the HCCH Evidence Convention that have made a Article 23 reservation, including Korea, to submit the documents in spite of going against the purpose of its declarations. Furthermore, even in cases to which the HCCH Evidence Convention applies, the U.S. courts issue pre-trial discovery orders based on the Federal Rules of Civil Procedure (hereinafter “FRCP”), thereby ensuing the unavoidable judicial friction. Against this backdrop, this study is aiming at solving two main problems. Firstly, it will establish the criteria regarding the execution of a request for pre-trial discovery of documents under the HCCH Evidence Convention, and secondly, it will suggest countermeasures against pre-trial discovery orders under the FRCP.   The criteria for determining whether to execute the United States’ letter of request issued for the purpose of obtaining pre-trial discovery of documents under the HCCH Evidence Convention would be proposed as follows. First, since ‘evidence’ that is subject to the HCCH Evidence Convention is materials for proving the issues of litigation, if the documents listed in the letter of request are found to be irrelevant to the litigation issue, the execution shall be refused. Next, according to Korea’s qualified exclusion under Article 23 of the HCCH Evidence Convention, statements regarding the possession or custody of documents are included in the object of refusal to execute. Therefore, the execution of deposition regarding these statements can be refused. In addition, submission of documents not specified in the letter of request should be rejected. However even if a number of documents are described collectively, individual documents corresponding to each case are clearly described, the documents should be considered particularized and specified. On the other hand, refusing the execution of the letter of request based on Article 9 of the HCCH Evidence Convention by interpreting the pre-trial discovery procedure as incompatible with the procedures of domestic law should not be allowed as it may defeat the legislative intent of Article 23 of the HCCH Evidence Convention. Lastly, even if the scope of request is wide, unless it falls under the grounds for refusal of execution as stipulated in the HCCH Evidence Convention and it does not fall within the scope of Article 23 reservation as well, Korea should neither arbitrarily reduce the scope of request nor execute just a part of it.   As for the countermeasures to the U.S. court’s pre-trial discovery order according to the FRCP, (ⅰ) enacting a blocking statute, (ⅱ) filing for a protective order predicated on the Korean court’s decision on the provisional disposition to enjoin the submission of materials, and (ⅲ) concluding a bilateral treaty with the United States have been reviewed. The U.S. court has maintained its position of not considering blocking statues such as France’s blocking statute or EU General Data Protection Regulations. In addition, parties or a third party who are required to submit materials under the pre-trial discovery order of a U.S. court will get stuck in a contradictory situation. This is because if they comply with the pre-trial discovery order, they will be sanctioned against violating the blocking statute, whereas if they do not comply with the order, they will face sanctions prescribed by the FRCP. So enacting a blocking statute is not an appropriate countermeasure against the U.S. courts’ pre-trial discovery order.   Filing for a protective order to the U.S. court premised on the Korean court’s decision on the provisional disposition to enjoin the submission of materials would be a realistic and practicable countermeasure. A party to the lawsuit may apply for an injunction with the Korean court against a third party who has been requested to submit materials in the pre-trial discovery procedure of the U.S. court. After receiving the decision on the provisional disposition by the Korean court, the party could seek a protective order with the U.S. court on such a ground. The party needs to prove the necessity for personal information protection for which the provisional disposition has granted and the difficulties arising from the conflicting legal obligations, rather than the fact that the provisional disposition to enjoin the submission of materials exists.   Since judicial friction arising from pre-trial discovery order under the FRCP is characterized as a dispute that can only be resolved by joint efforts with the United States, it is ultimately desirable for Korea to conclude a bilateral treaty with the United States. When concluding a bilateral treaty, Korea needs to strongly insist that the following contents be inserted into the bilateral treaty. First, in cases to which the HCCH Evidence Convention applies, the method of requesting for examination of evidence stipulated by the HCCH Evidence Convention instead of domestic law should be followed. Second, the submission of materials directly related to the issues of litigation should be requested. Third, the individual documents requested to be submitted in the letter of request must be precisely specified. Last but not least, if the submission of materials according to the pre-trial discovery order is contrary to the Korean domestic law or the decision of the provisional disposition, the protective order should be affirmatively issued in consideration of the difficulty faced by the party who has to comply with the conflicting legal obligations.   Along with this study, it is hoped that studies both on the current state of judicial friction between the United States and Korea arising from pre-trial discovery of United States and Korea’s countermeasures thereto would be more actively conducted and accumulated. Furthermore on the basis of such studies, it is expected that international judicial cooperation in civil matters would work better to streamline the investigation of evidence between the United States and Korea.  

Research on the Federal Judicial Center of the United States   Judicial administration, such as staff appointment and dismissal and work division within the court, is required for the court to run its organization, personnel, budget, accounting, and facility management. Education and research functions are also important parts of judicial administration because they provide judges with a wide range of information while they are dealing with heavy trial workloads. These functions assist judges in conducting proceedings in a more faithful and efficient manner. The Federal Judicial Center, an independent institution primarily responsible for education and research functions related to federal court administration, was established in the United States in 1967 so that the federal judiciary could respond quickly to changes in social conditions and ensure a continuous and efficient justice system for the people. The Center’s main divisions are Education, Research, Federal Judicial History, and International Judicial Relations. Each division advances the development and implementation of better judicial administration in federal courts. The Education division, for example, develops and implements education programs for court personnel, including judges, and the Research division conducts research projects to improve the efficiency of federal courts. Because of the staff’s professionalism and independence in carrying out their mandate, its work is highly regarded by federal judges as well as other branches or agencies, including Congress. Given the scope of the Center’s work, it could be considered a hybrid institution that combines Korea’s Judicial Research and Training Institute, Judicial Policy Research Institute, Training Institute for Court Officials, and Supreme Court Library (compilation of judicial history materials). Indeed, the Center is a significant institution, having served as the primary reference for the establishment of the Judicial Policy Research Institute, an independent research institute under the Supreme Court of Korea, as well as having a close relationship with the Judicial Research and Training Institute, a Korean judiciary educational institution. This study examines in depth the Center’s background and establishment process, purpose and function, organizational composition, specific tasks of each division, and method of performance, with the goal of deriving implications that help Korean institutions that perform educational and research functions improve the efficiency and quality of work performance, develop various educational programs or research projects, or utilize internal and external resources. Furthermore, because the Center is an institution with integrated educational and research functions, this study suggests ways to strengthen mutual cooperation between educational institutions, such as the Judicial Research and Training Institute and the Judicial Policy Research Institute, which is in charge of research functions within the Korean judiciary, by examining the organic cooperative relationship between the education division and the research division of the Center. Hopefully, this study would help to continue improving and activate the education and research functions of the Korean judiciary.  

Research on the Civil Execution of Virtual assets The Supreme Court recognized the property value of bitcoin, a representative Virtual asset, and the sum of the market caps of each of the world's top 10 Virtual assets has reached 1,700 trillion won. Considering these facts, it seems natural that Virtual assets appeared in the civil execution target. However, intangible Virtual assets, which are characterized by their “anonymity” in that personal information is not required for their retention and transfer and “decentralization” in that there is no central authority to manage their retention and transfer present difficulties in the application of general legal principles of the execution procedure that must be carried out pursuant to the procedure stipulated by the Civil Execution Act according to the nature of the object of execution. Moreover, in a situation where there is yet no law that provides standards or directions for how to handle Virtual assets in civil execution procedures, litigation related to Virtual assets and applications for their execution are steadily increasing. Therefore, by referring to various perspectives and rapidly changing policies on civil execution procedures related to Virtual assets, we proposed in this report a legislation bill on civil execution procedures for Virtual assets and their operation. The details are as follows: We divided the civil execution procedures for a Virtual asset into “monetary execution procedures” whose execution title is based on monetary claims and “non-monetary execution procedures” whose execution title is based on non-monetary claims, and then presented respective execution methods for the monetary execution procedures depending on who manages the Virtual asset. Here, considering the nature of Virtual assets as “other property rights” under the Civil Execution Act, we proposed execution provisions for Virtual assets by appropriately harmonizing the provisions on execution of claims and execution of movables. First of all, in the monetary execution procedure, ① in one case where a debtor manages his/her Virtual assets, we devised an execution procedure in which the Virtual asset itself, which is “other property rights,” shall be seized, and when the execution officer receives the debtor’s Virtual assets according to the “Virtual asset transfer order,” the execution court shall distribute the money converted by the sale order; ② in the other case where a third party manages Virtual assets and the debtor has the right to claim transfer of Virtual assets to the third party, we proposed that the “right to claim transfer of Virtual assets” itself shall be seized as “other property rights” and that the “Virtual asset” itself, which was transferred to the execution officer by the “Virtual asset transfer order,” be treated in the same way as in the procedure for cashing out and distribution in ① above. With regard to non-monetary execution procedures, we reviewed how direct compulsion, substitute execution, and indirect compulsion should be applied to the compulsory performance of Virtual asset transfer obligations, referring to the current status of domestic and international discussions. In particular, the German High Court judgment and its related positions that “the obligation to transfer Virtual assets is the substitute obligation of an act, so performance must be compelled by substitute execution” are expected to be an important reference when discussing judgment execution procedures in Korea that the claim to transfer Virtual assets is the execution title and compensatory damage should be made in case of inability to execute. Also, we proposed a method using the default system as a non-monetary means of indirect compulsion related to Virtual assets. In addition, we looked at various factors to consider when executing Virtual assets in consideration of the characteristics of Virtual assets and ended this report by examining ways to search for Virtual assets to be executed. Virtual assets, which emerged as a rebellion against the collapse of the individual economy by the state, are inherently and technically implemented so that they are difficult to restrict by institutional systems. With regard to Virtual assets, it may be reckless to try to transfer their value and turn them into cash by the standard of “law.” Moreover, thousands of altcoins have different characteristics from bitcoin, so there may be limitations in applying the contents of this report that studied civil execution methods based on bitcoin technology to all altcoins. Under these circumstances, it is difficult to propose a firm method for how to properly handle Virtual assets in civil execution procedures. Accordingly, this report focused on suggesting matters that can become a major framework for civil execution of Virtual assets with a focus on the common characteristics of bitcoin and altcoins. Therefore, although it may be difficult to apply the contents proposed in this report directly in practice, we hope that they would be of some help in preparing other research, policy preparation, or legislation related to the preparation of civil execution methods for Virtual assets.  

A Study on Protecting Confidentiality of Communications between an Attorney and the Client - Focusing on the Criminal Proceedings -   Communication between lawyers and clients has been protected as a matter of the lawyer's ethical duty of confidentiality in both Anglo-American and Continental law. Furthermore, the attorney-client privilege, which protects communications made in confidence in the course of the lawyer-client relationship, has been firmly established as a legal doctrine, particularly in Anglo-American jurisprudence. The purpose of the protection of confidentiality is to encourage clients to provide the attorney with all necessary information and protect information from disclosure against their will. In other words, this is a premise for lawyers to provide their clients with effective and appropriate legal assistance.   However, the Korean Constitution and laws do not explicitly stipulate the general right to be guaranteed such confidentiality, and it is difficult to find that this right is guaranteed through the interpretation of the current laws. The Supreme Court confirmed through the 2009 Do 6788 all-inclusive decision on May 17, 2012, that the right to be guaranteed the confidentiality of communication between lawyers and clients is not rightly derived or recognized by the interpretation of the current laws and regulations. When the submission of evidence is made compulsory, the infringement of confidentiality of communication between lawyers and clients frequently occurs. And such issues are raised in Korea, particularly during the seizure under investigation in criminal proceedings. Without legislative improvement, it would be difficult to solve the current problems.   This study's main goal is to seek legislative improvement measures for the aforementioned issues while also looking for implications by means of comparative legal analysis of relevant regulations in the United States, France, Germany, and other countries. Furthermore, this study suggests legislative measures that would effectively solve the problems in our current system. When settling the system after the relevant legislation, the comparative legal reviews in this study could be utilized as a reference for the interpretation of requirements, exceptions, and procedures for protection of confidentiality.   Various improvement measures to enhance the confidentiality of communication between lawyers and clients have already been suggested in Korea, and some of the related bills are currently pending in the 21st National Assembly. These existing bills are frequently introduced as an ‘amendment to the Attorney-at-Law Act.’ The amendment submitted to the 21st National Assembly, in particular, provides not only for the protection of the confidentiality of communication between lawyers and clients in general, but also for a general ban on the use of evidence obtained in an infringement of confidentiality in the state’s judicial and administrative procedures.   It is necessary to examine more closely, however, whether the contents of the amendment to the Attorney-at-Law Act are consistent with the legislative purpose and content of the existing Attorney-at-Law Act. A uniform regulation based on a single provision in the Korean Attorney-at-Law Act is not easy to harmonize with the inherent characteristics and legal principles rooted in each procedure while also maintaining the effectiveness of the provision. Furthermore, the amendment simply excludes the use of the evidence at the trial stage, but it does not permit a challenge to the seizure itself. The key to confidentiality, however, is to ensure that confidential matters are not seized by an investigative agency and are not present as evidence at the trial. As a result, the benefits of ensuring the right are limited, and there is still a lack of remedies for infringement of confidentiality.   The attorney-client privileges recognized in the United States are fundamentally a privilege under the law of evidence, a concept from the law of evidence. In the case of criminal proceedings, the court decides whether the privilege is protected or not when the other party immediately asserts this privilege against the forcible evidence-gathering act of the investigative agency at the investigation stage. In particular, although the Federal Rules of Evidence govern both criminal and civil cases, when courts decide whether to protect privileges in criminal procedures, there are cases where the unique characteristics of criminal procedures are considered in comparison to general civil cases.   In France, a country in the continental law system, in addition to the general provisions of the French Attorney-at-Law Act(Loi n° 71-1130 du 31 décembre 1971) on the guarantee of the professional confidentiality of lawyers(le secret professionel des avocats), the individual provisions under the Criminal Procedure Act(Code de procédure pénale) specifically regulate the professional confidentiality of lawyers. When there is a dispute over whether something should be protected as confidential during a search and seizure by an investigative agency, the seizure is temporarily ceased and the court decides whether to protect it so as to make the investigative agency seize documents and objects not subject to confidentiality. Recently, the French Criminal Procedure Act has been amended to further strengthen this protection. Meanwhile, in Germany, the protection of professional confidentiality in compulsory investigations, including seizure against lawyers, is regulated in several ways through the Criminal Procedure Act as an individual law, separate from the general provisions on confidentiality under the German Attorney-at-Law Act(Bundesrechtsanwaltsordnung).   Based on the comparative legal review, this study suggests the following legislative improvement measures.   First, considering that it might be more appropriate to regulate this issue under individual procedural law, this study proposes a legislative measure made in the form of an amendment to the Criminal Procedure Act instead of the amendment to the Attorney-at-Law Act, which has been commonly adopted by bills submitted to the National Assembly. In particular, it is considered that the compulsory submission of evidence in the Korean legal system was primarily related to criminal search and seizure rather than civil procedure, where the general evidence discovery system had not yet been introduced.   Second, although criminal seizure against lawyers was often problematic in Korea, the use of Articles 112 and 219 of the current Korean Criminal Procedure Act regarding the right to refuse seizure against a person who relates to the confidentiality of others, including lawyers, was poorly applied. This study proposes an amendment to the Criminal Procedure Act to broaden the object of protection by referring to foreign systems.   Third, in order to obtain relief from breach of confidentiality, this study proposes the procedure devised to dispute the compulsory seizure of evidence itself before the exclusion of evidence at the trial stage. The procedure to decide whether to be protected by professional confidentiality in the case of a dispute as well as the procedure for exercising the right to refuse seizure were specified in the proposed amendment to the Criminal Procedure Act. This study also suggests grounds for contesting the seizure and search by investigative agencies on the spot, as well as the special provisions of the quasi-appeal that allow the procedures to exclude confidential communication from the search and seizure by the ruling of the court.   Fourth, it could be discussed to determine the admissibility of evidence pursuant to Article 308-2 of the Criminal Act at the trial stage in a case where the right to refuse seizure was not exercised at the seizure spot even though the communication with a lawyer could be protected as confidential. With reference to the relevant foreign regulations, this study proposes an amendment to the Criminal Procedure Act to include a separate provision regarding admissibility in that case.   In criminal proceedings, the seizure of confidential communications between lawyers and clients has been controversial. Of course, this needs to be regulated from the point of view of confidentiality. But in order for the guarantee of confidentiality to be effective, the procedure needs to be designed to block the compulsory seizure and submission of evidence in advance before it is presented as evidence at trial. This study emphasizes that this aspect of procedure assurance is particularly important.   As an alternative to or in parallel with the existing discussions conducted in the context of the amendment of the Attorney-at-Law Act, this study is expected to spark several discussions on the revision of individual laws such as the Criminal Procedure Act to enhance the confidentiality of communication between lawyers and clients. Furthermore, it is expected to be used in the future as a useful reference for the interpretation and operation of related systems.  

10 Years of Civil Electronic Litigation: Achievements and Prospects - Focusing on Civil Lawsuits - Electronic litigation in Korea began around 2010 when the 「Act on the Use of Electronic Documents in Civil Procedure, etc.」 was enacted and the patent electronic litigation system was established, but its origin dates back to the late 1970s. Since the Supreme Court first established the “Judicial Information Computerization Plan” in 1979, judges have developed a case search and judgment-writing program and constructed a database. Computerization of registrations and issuance of certifications were also introduced to improve judicial services to the public. With such progress of judicial informatization, calls for adoption of electronic litigation have been growing from within the judiciary, especially as judges look to other countries that adopted electronic litigation in the 1990s. Accordingly, in the early 2000s, efforts to prepare legislation and establish systems for electronic litigation began in Korea. As a result of these efforts, the 「Act on the Use of Electronic Documents in Civil Procedure, etc.」 was enacted in March 2010. Since then, electronic systems for patent litigation have been constructed in April 2010, for civil litigation in May 2011, and for civil enforcement and non-contentious procedures in March 2015. The establishment of electronic litigation systems for all litigation areas except criminal litigation was completed within five-year period, which was prescribed at the time of enactment of the 「Act on the Use of Electronic Documents in Civil Procedure, etc.」 as the latest limit of implementing electronic litigation. It is unprecedented that a legal system of electronic litigation was constructed in such a short period of time, even in other developed countries that have advanced legal systems. What made it possible to construct the systems quickly in Korea was its advanced ICT infrastructure that was established before the implementation of electronic litigation systems, and the Korean people who are relatively quick to adapt to new technology. More than 10 years has passed, and electronic litigation is now the mainstream of civil litigation in Korea. Regardless of subject-matter jurisdiction, more than 90% of all civil lawsuits are filed and processed through the electronic litigation system. This adoption serves as evidence that Korea has shifted from being a fast-follower, by benchmarking countries that implemented electronic litigation systems before Korea, to a first-mover that now leads electronic lawsuits, on a par with pioneer countries. However, to further improve electronic litigation in Korea, the judiciary must continue to examine the current state of electronic litigation around the world and draw implications for improvements. With the importance of comparative legal research in mind, this research firstly examines systems in the United States, which has implemented the electronic lawsuit system firstly in the world in the early 1990s and adopted NextGen, a next-generation electronic litigation system. This research also reviews systems in Singapore, the first Asian country that implemented electronic litigation and now seeks to innovate its system via state-led judicial reform. In addition, this research explores systems in Germany and Japan, which went through a long preparation process to carefully and thoroughly revise their Civil Procedure Acts to implement electronic litigation and are now developing systems for electronic litigation. Finally, this research reviews systems in China, which has implemented online courts and the blockchainization of electronic evidence by utilizing its advanced ICT technology. In Korea, the establishment of the “next-generation electronic litigation system” which is expected to be completed in 2024, will be the first gateway to enter a new stage of electronic litigation. Korea needs to fully reorganize the current system, which will be outdated, to improve access to trials, and preemptively respond to rapid social changes and technological advances caused by big data and artificial intelligence. If the “next-generation electronic litigation system” is implemented as scheduled, it is expected that an innovative and user-friendly electronic litigation environment will be created. It is, however, disappointing that there has not been any noticeable improvement in the institutional preparation for electronic litigation. The 「Act on the Use of Electronic Documents in Civil Procedure, etc.」, the lex specialis that was hastily enacted to prepare a normative basis for implementing electronic litigation within 5 years with only 16 articles remains in effect. As a result, the Civil Procedure Act, designed to lay out the rules for traditional, paper-based civil litigations, is losing its relevance to today’s real-world litigation. As new wine must be put into new bottles, the Civil Procedure Act should be amended to address the new litigation environment based on electronic litigation, and norms should be redesigned to fit the new ICT environment. It is necessary to establish infrastructure to actively utilize the remote video trials, which has suddenly become widely used due to the COVID-19 pandemic, and to develop strategies to promote a speedy and efficient trial by adjudicating small claims cases online, adapting to the current non-face-to-face and non-contact era. It is also time to carefully devise principles for the use of artificial intelligence in the judiciary based on a social consensus in order to prepare for the impending era of artificial intelligence.