Effectiveness of pretrial disposition reform: interactions between judicial efficiency and access to justice

Abstract

Judicial efficiency achieved by filtering cases that do not deserve trial and litigants' right to access to justice are competing values of most of civil justice systems. How these two values are interacting and how these are balancing influence actors of the system, decide effectiveness of legal institutions, and lead future civil procedure reforms. Through analysis of Korean civil litigation proceedings, existing studies, observations of court hearings, and interviews with Korean judges and lawyers, this dissertation investigates how disposition without trial and related procedural safeguards of Korean civil procedure are actually working and how interactions between efficiency and procedural fairness influence actual use of procedural mechanisms. Based on that, this dissertation evaluates comparative law projects that recommend adoption of disposition without trial of the U.S. civil procedure suggested by Korean legal scholars. This dissertation argues that fundamental procedural values in action that are unique in certain society and at certain time period decide actual use of procedural devices and effectiveness of legal reforms. It also contends that, in Korean context, maximum level of access to adjudication on the merits and truth finding function of civil litigation are driving judges' and lawyers' civil litigation practices toward minimal use of disposition without trial that limits litigants' access to court and maximum use of procedural safeguards, thus establishing a one-sided model biased with access to justice in terms of balancing model. By applying this explanatory theory to comparative civil procedure projects in Korea, this dissertation evaluates these projects in light of considering fundamental procedural values in action; and illustrates the ways of designing comparative civil procedure projects that appropriately reflects contexts of adopting society and raises effectiveness of the legal reforms.