Digitisation and civil procedure in Germany
Debater: Eun Hyeon Kang1

Thank you for providing an excellent overview of the situation in Germany regarding
digitisation. It was informative to get a glimpse of how the German civil proceduresystem is changing during and after the pandemic. Below, I have one or two ideas
about issues related to virtual court proceedings on which I would like to ask Prof.
Stadler's assessment or opinion.

South Korea has provisions for virtual court hearings. The Korean Civil Procedure Act
was amended on August 8, 2021 to provide for the holding of pre-trial, interrogation,and hearing sessions through relay facilities such as video or by using Internet video
facilities (Article 287-2 of the Civil Procedure Act). However, in order to conduct
virtual court hearings for witnesses and experts located outside Korea (hereinafterreferred to as "international virtual court hearings"), an international legal basis isrequired, and Korea has also adopted the 1970 Convention on the Taking of Evidence
Abroad in Civil or Commercial Matters (hereinafter referred to as the "Hague
Evidence Convention").

Since direct examination of witnesses is the most desirable and reliable method ofevidence, it might be expected that judges and parties would prefer to examine
witnesses in person, even in international virtual court hearings. However, there iscurrently a split in national practice as to whether this should be permitted and, if so,on what grounds. In Germany, it is understood that the judiciary refrains fromrefusing requests for international virtual court proceedings from other EU countries
on the basis of the Hague Evidence Convention and the European Regulation onEvidence Taking.

1

Associate Professor, University of Seoul, Lawyer, South Korea

1

I wonder if there is a way to interpret the fact that parties or witnesses locatedabroad participate in hearings or witness depositions by virtual methods fromembassies, diplomatic missions and/or consulates near their location, etc., not as anexercise of the court's jurisdiction abroad, but as an act that taking place within theextended territory of the country holding the trial, by applying concepts such as
territorial limits of jurisdiction (although there would be limitations by the Hague
Evidence Convention, etc., if the courts or offices of other countries were usedinstead of the embassy of the host country). Wouldn't it be fair to say that a trial heldin the country where the court is located should still be considered a trial in the hostcountry, even if the parties or witnesses are participating by virtual methods fromanother country? I think this interpretation would not only make it free to therestrictions such as the Hague Evidence Convention or the European Regulation on
Evidence Taking, but would also be a way to jump-start international virtual court
hearings by more actively applying the national laws of the host country.

On the other hand, even now that the pandemic situation is over, the need for(international) virtual hearings seems to remain, as it will avoid unnecessary travel
costs for parties and witnesses, and it will contribute to the speed and efficiency ofproceedings by providing an easy and inexpensive way for courts to communicate
directly with parties/witnesses abroad or at a distance. Such arrangements will also
allow for a high degree of responsiveness to unexpected situations that may arise in
the future (such as a second pandemic). While much work remains to be done on thetechnical side, we believe that efforts to perfect (international) virtual court hearings
will continue to be necessary. I wonder whether legislation requiring courts and key
government agencies, and where possible embassies, missions and/or consulates, tohave dedicated courtrooms for (international) virtual court hearings would be a goodidea in the long run.

2