INTRODUCTION

1. Background to Raising the Issue of �Oral Proceedings’

For the past year and a half, the Korean judiciary has been at the center of debate on whether to implement oral proceedings regularly into our judicial system.

The judiciary should be accountable to the public. However, due to rapid social changes in Korea, including growth of the public’s aspirations for their rights, it is unlikely that the public would be satisfied with the services provided by the judiciary. Thus, the public will end up distrusting the judi­ciary.^[38] We looked into oral proceedings because we feared that the basis of our judicial system would collapse if the judiciary were to adhere to conventional court practices and not take measures to adjust to the desires of the public. The question then becomes, what do we expect from oral proceedings in judicial processes as one of the crucial means to reconstruct our judicial system? Would a switch to oral proceedings build up the public trust of the judiciary?

This chapter examines the background to proposals to implement oral proceedings, the process of discussion, and feasible methods of using oral proceedings in the litigation process as well as ongoing prospects and tasks.

2. Oral Proceedings as a Principle in Civil Procedure

As a counterpart of the principle of written proceedings, the principle of oral proceedings^[39] refers to a �speech-centered’ legal process. In a �speech-centered’ legal process, parties should communicate with judges through speech when parties offer their arguments, testimonies, and evidence from discoveries for hearings. A judge should admit and consider only spoken arguments for his decision under the principle of oral proceedings, which provides a tool to effectuate the norm requiring the court to execute oral proceedings.

The Civil Procedure Act conveys the principle of oral proceeding in its promulgation of specific rules for arguments,^[40] examination of evidence^[41] and judgments.^[42] In addition, the judge who takes part in oral proceedings should ultimately make judgment on the case at issue.^[43]

3. Goal and Efficiency of the Principle of Oral Proceedings

As a role model for Korean civil procedure, German civil procedure has set its current oral proceedings as a substitute for its prior written proceeding tradi­tion. The prior procedure of old German law before the 19th century, which was referred to as a typical form of writing-oriented legal proceedings, is well- described in the following sentence: �Things which are not in records do not exist in this world (quod non est in actis, non est in mundo).'

However, in 1877, the German legal community adopted the principle of oral proceeding in its code of civil procedure and began liberal oral arguments in courtrooms in order to seek quick and fair trials. This movement was based on the belief of the legal profession that they should respond to the demands of liberal political activism that requested independence of the judiciary and opening of court proceedings to the public. Following the changing trends of Germany, Japan also adopted the principle of oral proceeding, although it has been criticized for not having fully realized this system until their recent refor­mation of civil procedure.^[44]

Historically, two major justifications are usually advanced by those who assert the value of oral proceedings: enhancing transparency and fairness of the judiciary, and actually providing the public access to open court proce­dures. However, what makes our judiciary take notice of this procedure is that oral argument helps communications between parties and judges, eventually leading to harmonious settlement of disputes and enhancing appropriate deci­sion-making.

II.