Law and Practice Concerning Oral Argument in The Federal Civil Procedure of the United States

The Code of Civil Procedure of the Republic of Korea has adopted the element of oral argument as the principal means of conducting civil proceedings while simultaneously requiring the submission of written documents in various phases and procedures. Until recently, such orality has not been implemented as stated in the Code, in the actual practice. With the revision of the Code in 2002, however, as the revised Code has adopted the mechanisms assuring further readiness of the parties prior to the court dates and enabling material arguments and findings over the legal positions of the parties and the facts and evidence of the case, oral argument has become an essential tool for conducting the civil litigation in all applicable proceedings. This change has invited a new round of discussions and debates both within and outside the South Korean legal profession on the strengthened orality in the civil proceedings. The split of positions largely between its redundancy repeating the previously stated facts and arguments and its actual and symbolic legitimacy-enhancing role calls for a further assessment of the functions of the oral element in the civil procedure and the larger purpose it may attain in the nation's justice administration as a whole. As a part of such effort, from the comparative perspective, this article analyzes the characteristics of the orality in the civil procedure in the United States, focusing on the relevant legal provisions and the actual practices mainly as applicable to the federal civil trial under the Federal Rules of Civil Procedure. The characteristics of the federal civil procedure of the United States from the orality perspective include, first, a wide scope of discretion on the part of the...이 논문은 서울대학교 법학발전재단 출연 법학연구소 기금의 2006학년도 학술연구비의 보조를 받았음