FINDING PROBLEMS AND SEEKING SOLUTIONS

1. How Were Our Court Proceedings in the Past?

Due to problems inherent in the prior dominant mode of litigation in the Korean court system, we are quite willing to address and correct problems as they arise.

A. Weight of the case documents - about the thesis of �all solutions are in the case documents’

Korean court proceedings have mainly been operated in accordance with two principles. The first is that many trial dates are to be scheduled every three or four weeks (dispersed trials for one case) and the other is that many cases are to be heard on the same designated trial date (parallel hearings for many cases).

Therefore, the court has put more emphasis on written briefs than on oral arguments and has regarded written briefs as a more appropriate resolution method for the purposes of overcoming time constraints and heavy caseloads. In this court environment, the custom of written proceeding, which is not anticipated by the law, has taken root in our court system, and the prevailing conception is that things which are not in records do not exist in this world, meaning that judges find it difficult to consider orally-made arguments.

B. Way of operating trials in courtroom - about the thesis that �court proceedings should proceed concisely without any delay or hindrance'

In the past, actual details of cases were not commented on in courtrooms since oral arguments were replaced by quotation of the written briefs if the judge did not specifically order otherwise. This kind of litigation practice was said to be unavoidable due to time constraints and was grounded on the belief that it is unnecessary to reiterate the contents of the written documents offered to the judge. Most of the work of judges was concentrated on reviewing the written documents and writing decisions. Those practices were based on a consensus that court proceedings should reduce unnecessary components.

C. Function and role of written opinion - about the thesis of �judges speak only through their decision'

In our court proceedings,judges' written opinions contain abridgments of complete records of the parties’ testimony and arguments, the outcome of examination of evidence, undisputed fact statements, and legal analysis. They are so well constructed that anyone could gain a clear picture of the case in a single glance. When writing his opinion, a judge can check scrupulously for any possible flaw in his legal analysis based on the parties’ arguments and evidence. Also, his judgment writing could function as an answer given to the parties and enhance the likelihood of parties’ acceptance.

However, we do not always compliment the merits of our court proceed­ings when we consider the fact that judges are spending most of their time writing opinions in detail. This is the time for us to reconsider what losses are incurred when we make judges invest enormous time and efforts into perform­ing their job in writing.

2. What Kinds of Problems Were Caused by Prior Court Proceeding?

Previously, a courtroom could not function as a place for communication due to the lack of oral arguments.

This manner of court proceedings led the judge to be uninterested in oral proceeding; he tended not to listen very eagerly to parties’ arguments and even witnesses’ testimonies; he believed that he could reach the right conclusion by isolated readings of case documents. The custom of court proceedings, rather than individual choices made by the judge, prevented him from propelling implementation of oral proceeding.

As for parties, they had suspicions about whether the judge on the bench understood their assertions properly or even the facts of the case. They were unable to figure out in which direction the case was going and what points had to be focused on when making arguments. To them, the court proceedings were so rigid and authoritative that they would not dare raise objections throughout the course of proceedings. Consequently, it was not so unusual that the judge on the bench did not have a chance to listen to oral arguments them­selves, which was certainly far from showing his deep concern over the parties’ predicaments.

Due to the lack of common understanding of the merits of the case, parties were unable to predict the results of cases. To the parties, the judiciary seemed to be unconcerned with them and only interested in formally handling the case. Also, the chances of reconciliation between the parties were low.

As a result of the lack of communications between the judge and the parties in terms of assertions and evidence in the court proceeding, parties did not understand the reasoning of court decisions. Moreover, judges’ written opin­ions supporting decisions were not sufficient to resolve parties’ questions. The rates of appeal against such decisions were high, and the public’s need for good judicial service could not be satisfied even in the appellate courts.

On some occasions, parties had doubts about the fairness of the court proceedings, as the process seemed to be indifferent to the needs of the those seeking court services. The court’s indifference had damaged the public’s faith in the judiciary. Eventually, the judicial system could not play an appropriate role in solving disputes in society.

3. How Shall We Resolve These Problems?

As I mentioned above, the crisis in our judiciary requires us to find a new solu­tion for the problems stemming from courtroom procedure. What first came across my mind is that we should look back on our judicial system from the parties’ point of view.

As judges, we should consider the parties’ needs in the court proceeding rather than our own capability in handling cases since a decision would not be regarded as fair unless the parties also believe that it is fair. The Korean judiciary has started reconsidering its system; whether it has not �watched the moon at which the parties have pointed’ but has �watched the hands with which the parties pointed at the moon’, meaning that it cannot read the between the lines; whether it has done the best to serve what the parties wanted in trials; whether it has tried to find out the most favorable proceedings and adequate resolution to them; whether it helped the parties reach ultimate resolution of the disputes; and lastly whether the court has presented the right answers to the assertions from the parties.

We reached the conclusion that the court proceeding should be adjusted so that it would meet the needs of parties rather than those of judges. Through listening to what the parties hope for and what they want to assert by commu­nicating with an open mind, the judiciary can regain the public faith.

Recent advocacy for oral arguments in the judicial system is one of the judiciary’s efforts to recreate itself as �the judiciary accountable to the public.’ Oral proceedings providejudges and parties the opportunity to engage in active communications in courtrooms by allowing for the making of argu­ments and counter-arguments in real ways.

Implementing oral argument can be a great stress to those engaged in the legal profession as most of them are accustomed to the writing-centered tradi­tion. Nevertheless, our society requires a fresh change in the court system, and I believe that oral proceeding would play an important role to achieve that goal, catalyzing a fundamental cognitive change to legal professions.

Emphasis on oral proceeding does not imply that the writing-centered tradition is totally wrong or that it should be discarded. I do not ignore the efforts of the judges who try to make high-quality decisions under the time constraints they are presented with given strained working conditions and heavy caseloads. Rather, I point out that it is necessary for us to pay attention to the things that our tradition has overlooked.

Oral proceeding is one of the principles our procedural law had enshrined. It is necessary for the Korean judiciary to operate the court system by balanc­ing both procedural principles: writing-centered proceedings and oral proceed­ings. In so doing we will be able to benefit from the advantages of both types.

III.