Model European Rules of Civil Procedure 2020 – the ELI/UNIDROIT Projecton harmonization of civil procedure rules
Debater: Eun Hyeon Kang1

I gained a better understanding of the ERCP's balanced approach to civil procedure inboth Anglo-American and continental legal systems from Prof. Dr. Astrid Stadler'slecture. I am grateful to her for her long and deep research in this field. In thefollowing, I would like to conclude the discussion by asking for additional clarificationof the ERCP on access to information and evidence before and during litigation.

In Korea, the remedy for the structural ubiquity of evidence is very inadequate. Article289(1) of the Korean Civil Procedure Act requires a party to specify the facts to beproved when requesting evidence, which is often impossible for the party to specify.
Article 345 requires the plaintiff to specify (1) the name of the document, (2) thepurpose of the document, (3) the person in possession of the document, (4) the fact
to be proved, and (5) the reason for the duty to produce the document whenrequesting the submission of a document, which is particularly disadvantageous to
the plaintiff in cases where the evidence is structurally ubiquitous. To compensate forthese difficulties, Article 346 establishes a system for the submission of a list ofdocuments. Although this provision somewhat reduces the plaintiff's burden of proof
by requiring the plaintiff to outline the purpose of the document or the fact to beproved and the defendant to produce the markings and purpose of the document, it
is ineffective because there are no sanctions if the defendant does not cooperate.
In addition, there is a system that requires each local bar association to request publicinstitutions to investigate necessary matters and to submit documents in theirpossession upon request of their members

related to cases handled by theirmembers (Article 75-2 of Korean Attorney-at-Law Act), but it is based on voluntary1

Associate Professor, University of Seoul, Lawyer, South Korea

1submission and has no other means of enforcement.
On the other hand, the Korean Civil Procedure Act provides for an evidence
preservation system, which means that if there are circumstances that make it difficult
to use the evidence if it is not examined in advance before the hearing procedure is
held, the evidence will be examined in advance before the hearing or complaint isfiled upon the request of a party (Article 375 et seq.). This is the Korean system thatcomes closest to the ERCP in terms of pre-action access to information and evidence.
However, there is a problem with its current use, which is that it is significantly
underutilized. The reason for this is that it is more difficult to demonstrate not only
the need for discovery, but also the facts to be proven, which makes it difficult to use
the evidence preservation system at a time when the case is not yet mature.

Under these circumstances, the model rules on access to information and evidence
before and during litigation proposed by the ERCP are expected to serve as an ideal
model for the future revision of evidence laws in Korea. In my view, the concern thatthese means of access may be abused to pursue the other party's secrets can beresolved by establishing a system that thoroughly protects the other party's secrets
such as trade secrets within the litigation process, which is also proposed by the ERCP.

On the other hand, in order to be effective, access to information and evidence
during litigation or prior to the commencement of litigation must be accompanied byappropriate sanctions. I would like to know what sanctions the ERCP provides for in
the event that the holder of information and/or evidence does not comply with acourt's disclosure order, and I would also like to know your view or opinion as to theextent to which such sanctions will be effective in each Member State of the EU, in
particular in Germany.

2