전자증거(電子證據)에 대한 민사소송법상(民事訴訟法上) 취급(取扱)에 관한 연구 = (A) Study on the Electronic Evidence in the Civil Procedure

다국어 초록 (Multilingual Abstract)

The advent of the computer and the internet profoundly has impacted all phases and aspects of society. It has totally changed the way of communication. The infiltration of electronic document and email into the business world has increased the efficiency of conducting business. According to a recent report, it is estimated that more than 90 percent of all information generated is in digital form today. This change may impact the practice of law, specifically in the litigation arena. It`s been said that the information revolution is spawning a litigation revolution. As information migrates from paper to bytes, the litigation process will increasingly focus on electronic evidence as well as paper evidence. Traditional litigation process, however, was not suitable for the changes by electronic evidence. While the past litigation process was called the era of information stored solely on paper, it has now becomes the era of electronically stored information. Electronically stored information is totally different from analog information. It has lots of specific characters which may cause many problems in the present litigation process. So, how is the electronic evidence different from analog evidence? Electronically stored information is easy to make, use and store efficiently, which in turn make people to use it more frequently. It is also different in volume, accessibility and volatility. Furthermore it is convenient to copy and can be easily restored when deleted. Finally it needs specific machines or programs to read or investigate. These kind of characters, which are not usual for the analog evidence are not fully considered in traditional litigation process. So, electronic evidence is just treated as one type of analog evidence or to be substantially the same in the civil procedure. These treatments about the electronic evidence may cause lots of trouble. In order to fix the problems which are generated from the electronic evidence, we need to think about making some changes. Although there are some studies which are related to the electronic evidence, most of them are focused on the electronic documents. Little has been researched about the electronic evidence itself in the civil procedure as yet. The electronic documents is just one type of the electronic evidence in spite of it`s significance and there exist many other types of the electronic evidence which need to be considered. Needless to say, it would be better to study all types of the electronic evidence and suggest specific solutions for each type of the electronic evidence, if possible. It may be so, but I think that it is more practical way to solve problems to find something in common with many kinds of the electronic evidence and to generate the same process which can reflect same characters of electronic evidence. With this in mind, we need to improve civil litigation process. First, we have to rethink about admissibility and competency of the electronic evidence. In the traditional litigation process, there was no general limitation for them because of principle of free evaluation of evidence. But now the electronic evidence need to be limited with some tests considering the electronic evidence``s characters. Second, we need to prepare material and human support for examining electronic evidence. Specifically we need the electronic evidence presentation system and server considering electronic evidence`s accessibility and volatility. For the examination of the specialized electronic evidence, an expert support should be offered because of volatility of it. Third, the examination method of the electronic evidence need to be improved. Traditional methods are not suitable for the electronic evidence. Specifically just having one of them is not good enough to treat the electronic evidence. Therefore a mixed method or a new method is needed with help from material and expert supports. Fourth, proceedings for the preservation of evidence also need to make up for the