ORAL PROCEEDING: PRESENT SITUATIONS AND ISSUES

1. Oral Proceedings: Current Climate and Future Goals

A. Changes in judges' work pattern

In the past, a judge’s main job was to review the case files and write his deci­sion in the form of an opinion, as well as to preside in open court proceedings once a week.

In order to have more courtroom oral proceedings, these measures should be taken at the same time: reducing unnecessary documentary evidence files and simplifying written opinions to focus on points in disputes. Judges can use the model forms of simple written opinions that are posted in the judicial intranet.

B. Changes in courtroom

Court date scheduling in different timelines has been stressed and the hours consumed for each case have been significantly increased. We can see more cases where the judge gives parties more opportunities for oral argument than we see where judges merely recommend parties to submit written pleadings. There have been more changes in attorneys’ attitude toward oral argument from the beginning. Some attorneys are still passive in oral arguments.^[60]

C. Changes in court proceedings

Several positive effects, such as parties’ satisfaction with the court proceeding and the recovery of the parties’ trust in the judicial system, can be found. When I look into my recent six-month experience^[61] in court proceedings and the outcomes of local courts’ seminars on oral proceeding,^[62] the interactive communications between parties and judges have been substantially improved compared to those of the past.

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Still, we cannot yet discern significant changes in statistics, as it has been only about one year since we began emphasizing the importance of oral argu­ment proceedings.

The effects of oral proceeding on the court’s decision-making could be a controversial issue, though we all agree that oral proceedings are helpful in understanding the cases themselves. Until now, we have not had a statistical report or evidence demonstrating any results. However, we will evaluate the effects as the oral proceedings gradually begin to take root in our court system.

2. Merits of Oral Proceedings

As mentioned above, the advantages of oral proceedings are as follows: 1) the judge can acquire more accurate information when deciding cases;^[64] 2) for the parties, more opportunities to make arguments and offer testimony, and the results of trials are more easily predicted. As a result, more alternative dispute resolutions are likely to surface and there might follow an increase in people’s trust in the judiciary.

BOX 2.1 SPECIFIC MERITS OF ORAL PROCEEDINGS

Maximizing court communication

Through oral argument proceedings, court communication among the people concerned, judges and parties, can be maximized. Interactive communication can be accomplished by oral argument proceedings, since the proceedings give the judges and the parties (attorneys) a chance to raise direct questions about ambiguous or doubtful assertions and testimony on the spot, through which they can even unearth underlying causes, motives or other unrevealed circumstances in dispute.

Accurate understanding of complex litigation

Through oral proceeding, a judge or panel can comprehend even the most complex litigation that involves highly technical terminol­ogy that would otherwise be incomprehensible (just reading briefs, for example), but by oral explanation from parties and other people concerned it is understandable.

Helping the judge to make the correct decision

Oral proceedings help a judge make accurate decisions.

Providing sufficient opportunities to make a statement - court as listener

In pursuing �Court as a Listener’, oral proceedings provide a place where the parties can persuade judges by making persuasive arguments and presenting compelling evidence, where the parties can reveal their real intentions and situations. A judge should create an atmosphere where active contentions and argu­ments, rather than plain statements, can be made. Ajudge should be a serious listener also.

Helping parties to understand court procedure - court as explainer

During the oral proceedings, the court can present and explain its opinion and reasoning to the parties so that the parties can directly work out in which direction the court procedure is going. �Court as an explainer', which is one of the core aspects of the oral proceeding, can enhance public trust in the judiciary.

Fostering parties' alternative dispute resolution

Oral proceeding, through its functioning as �court as a listener' and as �court as an explainer,' heightens the likelihood of reach­ing alternative dispute resolutions. The oral proceeding itself can be the most effective tool to find a way to resolve disputes in ways that the parties exactly want, since a reasonable alternative dispute resolution can be reached not by simply waiting for the parties' reconciliation but by exploring common understanding through oral proceedings.

Improving foreseeability of case outcomes

Although an alternative dispute resolution may not be successful, judges would make their decisions relying on the findings from oral proceedings and the parties would be able to predict the result of the trial. This means that distrust of the courts' decisions could be minimized, since the parties will not argue that they were not given sufficient opportunities to make contentions or that they were unable to foresee the reasons when they lose their cases.

Enhancing effectiveness of case management

Oral proceedings help the judge to do his work more easily and effectively since they can remove meritless contentions from consideration and concentrate solely on the remaining substan­tive factors so it becomes much easier to comprehend the case in detail and to set up reasoning to make a decision. Oral proceed­ings could make the judge's work tougher due to increased court­room hours and requirements for serious pre-examination of court files. However, in the long term, oral proceeding will lighten the judges' workload because of effective case management and fewer appeals arising from the parties' acceptance of results (decisions) of trials.

Implementing public disclosure

Oral proceeding is the only way to accomplish �public disclosure'. By way of revealing the issues in dispute in an open courtroom, oral proceeding can help the audience understand the case better and judges will recognize the merits of the case thoroughly. Judges can manage oral proceedings with the principle of equity and by adhering to courtroom courtesies.

3. Criticism and Measures

These are the criticisms of oral proceeding initiatives: 1) the parties’ state­ments over the case summary in oral proceedings are not so helpful in exam­ining the case, since the judges review the parties’ written pleadings before the oral proceedings; 2) Oral proceeding is not helpful for parties who are not competent enough to make arguments.^[65] A survey of judges shows the follow­ing: 1) with the present case backlog, judges cannot manage the oral proceed­ings effectively; 2) oral proceedings themselves may add further burdens on judges, if the parties are non-cooperative.^[66]

Oral proceedings are a method of hearing a case where judges try to learn something besides what is written in the pleadings. What we are trying to seek through oral proceedings is similar to what a student strives for when being present at a professor’s lecture compared to what he can achieve by reading from a book.^[67] Therefore, oral proceedings should be focused on communica­tions, which means that it is unnecessary to repeat the submitted pleadings.

I do not agree with the suggestion that the court should run oral proceed­ings only for selected cases. Oral proceedings are one of the most basic proce­dural principles, one that should not be left to our own discretion whether to impose or discard. The only thing we can do is to adjust the level when oper­ating oral proceedings considering case details, the parties’ preparations, and the depth of the proceeding.

In order to effectuate oral proceeding principles in our judicial system, we need to do the following: curtail the caseload, take measures for easy grasping of case-files, simplify the court decision making proceeding, and secure court facilities.

Table 2.2 Exhibit - survey result

Table 2.3 Survey result - parties, witnesses

court proceedings?

Notes:

Cases for Survey: Cases from the District Court in Pusan/Civil Case 10th Division.

Survey Period: March 2007 - July 2007.

Survey Personnel: 31 counsel, 35 parties/witnesses.

Survey Method: We asked counsel and parties/witnesses to answer questionnaire with points from 1 to 7 according to their tendency toward answer point range. Average points were calculated with answered points.

Table 2.4 Exhibit court cases nationwide

Court Disposition (%) Dispute Appeal (%)

Resolution (%)

District Court

Notes:

Statistics Period

- 2006 Statistics : 2006. 1. 1. - 6. 30.

- 2007 Statistics : 2007. 1. 1. - 6. 30.

Case classification: according to value of lawsuit.

- Over 100 million won claim: trial in collegiate panel in District Court, Appeal to the High Court.

- Below 100 million won claim: trial in single judge in District Court, Appeal to Appellate Division in District Court.

VII.