Summary
An application for production may be denied for documents that are not directly related to the matters to be proved or that are unnecessary as documentary evidence.
3.1The Standard by Which the Path Opens
The right of access to materials must not expand into a right to rummage through irrelevant internal records. Accepting the criterion that whether a document is one for one's own use is determined not by its title but by its purpose of preparation, content, and possibility of external use, the question in the scene where Plaintiff A applies for the approval documents held by Defendant B and Defendant B refuses them all on the ground that they are internal documents is whether an order must always be issued whenever a duty of production exists. What the standard is by which this channel of relief opens is the question here.
Article 347 (1) of the Civil Procedure Act provides that "where the court finds that there is a justifiable reason for a motion for document production, it may, by ruling, order the person who possesses the document to produce it." The court spoken of in this text is the body that examines the motion for document production; the person who possesses the document is the opposing party who is the subject of production; and the ruling and the production order are means that are chosen only where a justifiable reason is found. The relief demanded, its parties, and its conditions are all determined together here.
The Supreme Court Decision 2014Ma2239 decided July 1, 2016 holds that "applying for an order directing the person who possesses a document to produce it is one of the ways of applying for documentary evidence, and therefore, where the court finds that the document that is the subject of the application for a production order is not necessary as documentary evidence, it may decline to accept the application for a production order. Moreover, where the matter sought to be proved by the document that is the subject of the document production order is not directly related to the claim, the court may decline to accept it." The reason the requirement of a duty of production is distinguished from the stages of necessity as documentary evidence and direct relation to the matter to be proved is that the latter examinations are not dispensed with by the former requirement alone. As a result, where a duty of production, relevance, and the need for taking of evidence are found, and the statutory grounds for protection and their limitations are satisfied, the gateway opens.
The strongest counterargument arises from the point that establishing relevance in advance may require a document that has not yet been seen, and from the point that disclosure of documents may irreparably harm trade secrets and the rights of third parties. Requiring the applicant to forecast the contents of a document the applicant has not been permitted to inspect and thereby substantiate relevance would in fact nullify the right of access to materials, and once a secret has been disclosed it cannot be recovered, so the loss is not slight. However, so long as the answer that the duty of production alone cannot eliminate the necessity examination is maintained, a justifiable reason means the litigation-related necessity that justifies a production order, and that examination is not dispensed with. The fact that the difficulty pointed out by the counterargument has not been resolved is addressed only by setting down this limitation alongside it.
The only fact that can be confirmed in this scene is that Plaintiff A applied for the approval documents held by Defendant B and Defendant B refused them all on the ground that they are internal documents. The specific documents, the possession relationship, the reason for the application, the reason for refusing production, and the decision were designated as subjects to be recorded, but the facts, service, and performance results of an actual case were not established, and the reasons for the judgment and the detailed facts were not used as a basis for reading. Accordingly, whether the duty of production, relevance, and the need for taking of evidence, and the satisfaction of the statutory grounds for protection are present, and the specification of the relief demanded and its parties and conditions and the availability of defending the right of the chosen form of action cannot be determined on the basis of this scene alone. Where the document is not specified as to what it is or where it is held, the matter remains undetermined.
The conclusion this section permits is that this channel of relief opens only where a justifiable reason, that is, the litigation-related necessity that justifies a production order, is found; and the conclusion that an order must always be issued merely because a duty of production exists, without undergoing the necessity examination, is not permitted.
3.2The Conditions That Block Relief
In the scene where Plaintiff A applies for the approval documents held by Defendant B and Defendant B refuses them all on the ground that they are internal documents, the question remains whether the court must always order production once a duty of production is found. What this section addresses is the stage that remains after that judgment is undertaken, namely the requirements for an application for a production order to be accepted. Identifying what the blocking conditions are is the task at hand.
Article 347 (1) of the Civil Procedure Act, the legal basis for an application for a production order, provides that "where the court finds that there is a justifiable reason for a motion for document production, it may, by ruling, order the person who possesses the document to produce it" (Article 347 of the Civil Procedure Act). In this text, while the court proceeds on the premise that the person who possesses the document, that is, the holder of the document applied for, is the subject of the duty of production, it separately requires a 'justifiable reason' as a condition for ordering production. Here a justifiable reason means the litigation-related necessity that justifies a production order. In other words, the existence of a duty of production and the justifiable reason for issuing a production order are separate items of determination. In terms of the text, a production order is provided to be possible 'when' a justifiable reason is found, and that requirement is not satisfied merely by the duty of production of the person who possesses the document applied for.
Placing the requirement distinction of the above provision alongside the holdings of the precedents makes the criterion for determination at this stage clear. Summary of Decision [2] of the Supreme Court Decision 2014Ma2239 decided July 1, 2016 states that "applying for an order directing the person who possesses a document to produce it is one of the ways of applying for documentary evidence, and therefore, where the court finds that the document that is the subject of the application for a production order is not necessary as documentary evidence, it may decline to accept the application for a production order." It further adds that "where the matter sought to be proved by the document that is the subject of the document production order is not directly related to the claim, the court may decline to accept it" (Supreme Court Decision 2014Ma2239 decided July 1, 2016). This holding, while confirming that an application for a production order is one form of application for documentary evidence, presents necessity as documentary evidence and direct relation to the matter to be proved as the conditions under which an application for a production order is accepted. Therefore, even if a duty of production is found, where the document is unnecessary as documentary evidence or is not directly related to the matter to be proved, the court may decline to accept the application for its production, and if even one of the statutory requirements is not satisfied, the channel of relief is closed. In this determination, the language of the Summary of Decision is the basis, and applying that language in connection with the distinction of requirements in the provision is the author's formulation.
The strongest counterargument arises from the point that establishing relevance in advance may require a document that has not yet been seen. If the applicant, without knowing the contents of the document, must explain in advance how it relates to the matter it seeks to prove, then the necessity examination may become a device that blocks the application on the ground of insufficient information prior to inspection of the document, giving rise to substantial inconvenience and loss. The concern that disclosure of documents may irreparably harm trade secrets and the rights of third parties compounds this. This counterargument points to an unmistakable tension. Even so, the duty of production alone cannot eliminate the necessity examination. If the stage of separately assessing necessity as documentary evidence and direct relation to the claim is abolished on the mere basis that a duty of production has been found, the device that prevents a broad-ranging rummaging through even irrelevant internal records disappears. The difficulty of proving relevance pointed out by the counterargument remains, but that difficulty cannot serve as grounds for eliminating the necessity examination itself.
Among the facts of the synthetic scene, what is relevant to this question is that Defendant B refused the production of the approval documents entirely on the ground that they are internal documents. This refusal denies the duty of production with respect to the documents in his possession, but it does not follow that Plaintiff A's application for a production order is automatically accepted. The court must assess together whether the specific document that is the subject of the application for a production order is necessary as documentary evidence, and whether the matter sought to be proved by that document is directly related to the claim. Since it is not confirmed in this scene which matter of proof the approval documents applied for by Plaintiff A reach, or how that matter relates to the claim, the judgment on those requirements remains undetermined. What is confirmed from the scene alone is the distinction that the finding of a duty of production and the justifiable reason for a production order are separate items of determination, and the change of conditions—that even if the document cover is the same, the judgment of whether it is a document for one's own use is made anew if the purpose of preparation and the circumstances of external use change—does not substitute for the determination of requirements. If the document is not specified as to what it is, the availability of this relief likewise cannot be determined at this point.
The conclusion this section permits is that the court may issue a production order only where a duty of production is found and necessity as documentary evidence and direct relation to the claim are found together, and remains within the scope that the channel of relief opens where the limitations of the statutory grounds for protection are satisfied. Conversely, where a duty of production is not found, or where there is no need for taking of evidence and the document production motion in question is not accepted, if even one of the statutory requirements is not satisfied, the channel of relief is closed. Beyond this, how the conflict between protection of secrets and the need for proof is to be reconciled, and what disadvantages follow from refusing a production order, are not within the scope answered by this section.
3.3The Boundary That Remains When There Is No Data
Plaintiff A applies for the approval documents held by Defendant B, and Defendant B refuses them all on the ground that they are internal documents. In this scene, what the court receiving the application must confirm first remains the question. Where a duty of production is not found, or where there is no need for taking of evidence and the document production motion in question is not accepted, this relief is blocked. This sentence points only to the situation where relief is blocked, and does not encompass situations where nothing can yet be determined. Therefore, the boundary that separates the two situations is the question of this section.
The language that answers this question is drawn from two grounds. Article 347 of the Civil Procedure Act provides that "where the court finds that there is a justifiable reason for a motion for document production, it may, by ruling, order the person who possesses the document to produce it." The subject spoken of here is the court, the act is the production order by ruling, and the condition is when it is found that there is a justifiable reason for the application. The Supreme Court Decision 2014Ma2239 decided July 1, 2016 held that "applying for an order directing the person who possesses a document to produce it is one of the ways of applying for documentary evidence," and then added that documents that are unnecessary as documentary evidence, or whose matter of proof is not directly related to the claim, may be declined.
Connecting these two passages, the existence or non-existence of a duty of production and the necessity of a production order must be determined separately. The former is the question of whether the opposing party possesses a specific document and must produce it; the latter is the question of whether that document is necessary for proof in this lawsuit. Since a justifiable reason means the litigation-related necessity that justifies a production order, the court does not skip the necessity examination merely on the basis of the application's stated reasons. Accordingly, if the document is not specified as to what it is, even the former determination cannot be set on foot, and the path to the latter determination is also closed. In that case the conclusion is not a denial but undetermined, and it is distinguished from the case of blocked relief explained above.
This distinction, however, does not impose an unfavorable result on the applicant. Establishing relevance in advance may require a document that has not yet been seen, and there are cases where the contents of that document are revealed only upon opening it. Moreover, the concern remains that disclosure of documents may irreparably harm trade secrets and the rights of third parties. Even so, the duty of production alone cannot eliminate the necessity examination. The author's answer, while adhering to this qualification, is that the fact of non-specification is not converted into a denial of necessity.
Since neither what document the approval documents applied for by Plaintiff A are nor where Defendant B holds them is specified within the synthetic scene, the determination cannot be fixed on the basis of this scene alone. Nor can the status of being a document for one's own use be asserted categorically merely from the circumstance that Defendant B refused on the ground that they are internal documents. The contrast that, even if the document cover is the same, the judgment of whether it is a document for one's own use is made anew if the purpose of preparation and the circumstances of external use change, merely examines the situation where the conditions of judgment change and adds nothing to the facts of this scene. The performance results and the outcome of the actual case were also left undetermined, so that point remains unverified.
What this section permits is to leave the judgment on an unspecified document undetermined; what it does not permit is to read that undetermined status straightaway as unavailability of relief. Conversely, the conclusion of eliminating relevance and the need for documentary evidence merely because a duty of production has been found cannot be drawn from this section either. What should be left in the record of determination remains a separate question.
3.4The Records Needed for Determination
That conclusion was that whether a document is one for one's own use is determined not by its title but by its purpose of preparation, content, and possibility of external use. The questions that follow are whether an order must always be issued when a duty of production exists, and what records are necessary for the judgment. The stage here refers to the examination that determines whether a production order against the opposing party's document is issued, and it asks together about the object of that examination, its procedure, and the scope of the record.
The first passage that answers this question is found in Article 347 of the Civil Procedure Act. The subject indicated by this passage is the court, the act is the order of production by ruling, and the condition is when it is found that there is a justifiable reason for the motion for document production. Thus it does not mean that a production order follows automatically from a duty of production alone.
The same conclusion continues from the determination of the Supreme Court Decision 2014Ma2239 decided July 1, 2016. Its gist states that "applying for an order directing the person who possesses a document to produce it is one of the ways of applying for documentary evidence, and therefore, where the court finds that the document that is the subject of the application for a production order is not necessary as documentary evidence, it may decline to accept the application for a production order," and adds that "where the matter sought to be proved by the document that is the subject of the document production order is not directly related to the claim, the court may decline to accept it" (Supreme Court Decision 2014Ma2239 decided July 1, 2016). This determination means that documents that are not directly related to the matter to be proved, or that are unnecessary as documentary evidence, need not have their production accepted. Accordingly, the existence of a duty of production and the existence of a justifiable reason must be distinguished. The former is a question of the duty to produce the document, and the latter a question of the need to order that production; therefore, the finding of one does not automatically bring about the other.
The strongest counterargument aims at the point that this distinction makes what is demanded of the applicant excessively burdensome. This is because establishing relevance in advance may require a document that has not yet been seen. A paradox arises in that the applicant must show that the matter sought to be proved by the document is directly related to the claim, while being unable to know what the document that he has not yet read contains. Still, this counterargument is met with the answer that the duty of production alone cannot eliminate the necessity examination, and the portion of the dispute that flows in an unfavorable direction is not erased. That is, while acknowledging that, given the nature of an uninspected document, the applicant's substantiation is inevitably limited, that limitation alone does not dispense with the examination that asks about the necessity as documentary evidence and the direct relation to the claim.
The comparison within the stipulated synthetic scene also has its limit here. The facts in this scene are that the subject of the application is a specific document, namely the approval documents; that the possession relationship is designated as Defendant B holding that document; and that the reason for the application and the reason for refusing production are presented respectively as the application and the ground of internal documents. On the basis of this record alone, necessity as documentary evidence and the direct relation between the matter to be proved and the claim cannot be regarded as already proved, and thus remain undetermined. The comparative condition that, even if the document cover is the same, the judgment of whether it is a document for one's own use is made anew if the purpose of preparation and the circumstances of external use change, is also relevant to the scope of this section; but whether a production order is issued on the basis of this condition alone cannot be determined from this scene. Years, amounts, or commencement dates, or the outcome of a judgment, that are not in the synthetic scene cannot be used for the determination of this section.
The conclusion this section permits is that, even where a duty of production is found, a production order is determined solely on the basis of the records entered in the specific document, the possession relationship, the reason for the application, the reason for refusing production, and the decision. Conversely, the conclusion it does not permit is the one whereby the mere existence of a duty of production eliminates the necessity examination or a justifiable reason is found as a matter of course. The principle of not filling absent records by presumption operates together with the meaning that, merely on the ground of the document being uninspected, the determination of relevance or necessity itself cannot be dispensed with. The determination here is limited, in that it fixes the conditions at the production order stage; the combination of the established records does not predetermine the ultimate question of whether an order is issued.
3.5Circumstances That Change the Decision
This ruling rests on a specific document, a custody relationship, the reason for the application, the reason for refusing production, and the decision. Without that record, the conclusion remains undetermined. On the premise of this record left by the preceding section, the question remains whether a production order must always be issued whenever a duty to produce exists. In this scene, the present question is whether the court, having recognized the duty to produce, must proceed at once to an order.
Article 347, paragraph (1) of the Civil Procedure Act provides as follows. "Where the court recognizes that there is a justifiable reason for a motion for document production, it may, by decision, order the person in possession of the document to produce it." (Civil Procedure Act Article 347) Under this language, the actor who may order production is the court, the target is the person in possession of the document, and the means of disclosure is a decision. The condition required by the language is that a justifiable reason for the motion for document production be recognized. The provision takes that recognition as the ground for a production order, and does not separately address the case in which such recognition is absent.
Supreme Court Decision 2014Ma2239 decided July 1, 2016 explains the same condition in two stages. "Applying for an order directing the person in possession of a document to produce it is one of the ways of applying for documentary evidence; accordingly, where the court recognizes that the document that is the subject of the application for a production order is unnecessary as documentary evidence, the court may decline to accept the application for a production order. Further, if the matter to be proved by the document that is the subject of the document production order is not directly related to the claim, the court may also decline to accept it." (Supreme Court Decision 2014Ma2239 decided July 1, 2016) Here, a document that is not directly related to the matter to be proved, or that is unnecessary as documentary evidence, may be rejected on the application for production. The two determinations do not overlap. The stage of asking whether the matter to be proved is directly related to the claim and the stage of asking whether the document is actually necessary for that proof as documentary evidence stand separately. Recognition of the duty to produce does not erase this review of litigation necessity, and this question remains distinct from whether a duty to produce is recognized.
If so, the strongest counterargument takes aim at the point that this review itself leaves an excessive burden on the applicant. To show relevance in advance may require a document not yet seen. A demand that one explain what a document proves while being unable to see the document forces the paradoxical stance of claiming already to know its contents in place of a right of access to materials. Moreover, disclosure of the document may irreparably harm trade secrets and the rights of third parties. The counterargument gains force in that a strong ground is needed to grant an application in the face of such loss and inconvenience. The two-stage determination confirmed above requires the necessity of documentary evidence and direct relation independently of the recognition of the duty to produce, and the difficulty the counterargument points out may be a circumstance that weakens that review, but it cannot serve as a ground for eliminating the review itself. So long as the language requires a justifiable reason, that determination cannot be skipped.
This question is limited when contrasted with this scene. In this scene, what the document is, where it is held, and the reason for the application are not specified, and no values such as a year or an amount are fixed. Accordingly, whether this scene falls within the direct relation or the necessity of documentary evidence as set out in Supreme Court Decision 2014Ma2239 decided July 1, 2016 cannot be determined on this scene alone, and this remains undetermined. What is settled, however, is the place of the condition. Even if the document bears the same label, if the purpose of preparation and the circumstances of external use change, the determination of self-use document is made anew. Even for an internal document bearing the same label, if the purpose of preparation and the circumstances of external use change, the premise that it is a self-use document is shaken, and that change leads back to the determination of litigation necessity. This scene does not address the outcome of winning or losing, or the result of recovery, in actual cases.
The conclusion this section permits is clear. Even where a duty to produce is recognized, the court determines together the necessity as documentary evidence and the direct relation to the claim, and if that determination is negative, the court may decline to accept the corresponding motion for document production. Conversely, recognition of the duty to produce alone does not make the review of grounds for statutory protection or of necessity disappear. The circumstance that a determination cannot be made for want of materials is merely a circumstance of undetermined status, and does not immediately lead to unavailability of relief. What this question does not cover is the effect of wholesale waiver or refusal of an order where secrecy and the need for proof overlap; that issue is not the task of this section.
3.6The Strongest Counterargument and the Answer
How is the strongest counterargument answered? In this scene, the issue is whether an order must immediately follow once a duty to produce is recognized.
To address this question, one first reads the language at issue. Where the court recognizes that there is a justifiable reason for a motion for document production, it may, by decision, order the person in possession of the document to produce it (Civil Procedure Act Article 347). The actor spoken of here is the person in possession of the document, the act is the production of that document, and the condition is that a justifiable reason for the application be recognized. The statute declares only that production may be ordered once this condition is recognized; it contains no statement that other reviews must be omitted.
In the civil judicial procedure of the Republic of Korea, the court treats an application for a production order as one form of application for documentary evidence. Accordingly, where the court recognizes that the document in question is unnecessary as documentary evidence, it may decline to accept the application for a production order, and if the matter sought to be proved by that document is not directly related to the claim, it may likewise decline to accept it (Supreme Court Decision 2014Ma2239 decided July 1, 2016). This determination treats separately the existence of the duty to produce documents and the necessity and relevance as documentary evidence. The conclusion the author draws is this: the fact that a duty is recognized is only the beginning; the court still examines whether the document is necessary for proof in the lawsuit and decides whether to accept the application.
However, this distinction is met by a strong counterargument. Since the contents of a document not yet inspected are unknown, it is difficult to show in advance what that document can prove. Those who emphasize this inconvenience say that, since the parties cannot know the contents of sealed internal records, requiring proof of relevance is tantamount to blocking the application. Overlaid on this is the concern that disclosure of the document may irreparably harm trade secrets and the rights of third parties. The reason for maintaining the conclusion without denying this loss and inconvenience is that the risks of disclosure extend beyond the plaintiff's scope. So long as the right of access to materials must not grow into a right to rummage through internal records of no relevance, one cannot answer by erasing the review itself.
Returning to the synthetic scene and contrasting it with the conditions above: here the document is titled an internal document, while whether it is a self-use document is determined not by its designation but by the purpose of preparation, its contents, the possibility of external use, and the like. Accordingly, just as the duty to produce is not determined by the name inscribed on the label alone, so too the fact that a duty to produce has arisen does not automatically establish the necessity as documentary evidence. This section defines the justifiable reason as the litigation necessity that justifies a production order, and decides whether to accept the application only after passing through the reviews of relevance and necessity. Whether the plaintiff has specified any document and stated where it is held, and how the reason for the application has been stated, however, cannot be settled on the scene alone and remains undetermined.
What this section permits is the judgment that, even where a duty to produce exists, if the document is unnecessary as documentary evidence or the matter to be proved is not directly related to the claim, the court may decline to accept the application. Conversely, what this section does not permit is the judgment that, once a duty to produce is established, the review of necessity must be omitted and a production order must issue at once. To cross this boundary results in the right of access to materials growing into a right to rummage through internal records of no relevance. The difficulty caused by a document not yet seen is therefore a matter to be handled in the design of the review, and cannot justify the deletion of the review itself.
3.7The Link to the Application and the Dispositive Part
The preceding section yielded the answer that the review of necessity cannot be deleted on the basis of the duty to produce alone. Without repeating that conclusion, this time the question is whether the court may still reject the application after the duty to produce has already been recognized. The starting point of this question is that the right of access to materials must not grow into a right to rummage through internal records of no relevance. Whether a production order must immediately follow from the fact that the approval documents applied for by A fall within the scope of B's duty to produce remains a separate question.
The language answering this question is first confirmed in Article 347 of the Civil Procedure Act. The provision states, "Where the court recognizes that there is a justifiable reason for a motion for document production, it may, by decision, order the person in possession of the document to produce it." Here the court is the actor issuing the production order, the person in possession of the document is the counterpart subject to the order, and the production order takes the form of a decision. And the condition under which the court may order production is limited to the case in which a justifiable reason for the motion for document production is recognized. The justifiable reason means the litigation necessity that justifies a production order, and this is an item of determination distinct from the existence of the duty to produce.
The reason the duty to produce and the review of necessity must be distinguished is that the two determinations answer different questions. The duty to produce is a determination of whether the person in possession of the document is in a position to hand it over as a matter of law, while the necessity as documentary evidence and the relevance of the matter to be proved are determinations of whether that document should be taken as evidence in this lawsuit. Supreme Court Decision 2014Ma2239 decided July 1, 2016 states, "Applying for an order directing the person in possession of a document to produce it is one of the ways of applying for documentary evidence; accordingly, where the court recognizes that the document that is the subject of the application for a production order is unnecessary as documentary evidence, the court may decline to accept the application for a production order." To the same effect there follows the proviso, "Further, if the matter to be proved by the document that is the subject of the document production order is not directly related to the claim, the court may also decline to accept it." Accordingly, a document that is not directly related to the matter to be proved, or that is unnecessary as documentary evidence, may be rejected on the application for production, and the court is not bound to issue an order merely because a duty to produce has been recognized.
The strongest counterargument takes aim at the point that, if the applicant is required to show the relevance of a document not yet seen in advance, the application becomes practically useless. If an application can be accepted only after disclosing what lies inside a document that has not been opened, the silence of the party holding the information becomes the review standard as it stands. Such loss and inconvenience are real on the side whose application is dismissed as well. Yet the review of necessity cannot be deleted on the basis of the duty to produce alone. The justifiable reason is separately required as the litigation necessity that justifies a production order, and if it is omitted, the claim for access to materials expands into a right to rummage through internal records of no relevance. The difficulty of proof the counterargument points out is a circumstance to be addressed by having the applicant place the specific documents and the reason for the application on the record, and it cannot serve as a ground for eliminating the review of necessity itself.
Returning to the synthetic scene, the subject applied for by A is the approval documents held by B, and B's reason for refusal is that they are internal documents. On this scene alone, it is not settled whether the approval documents are self-use documents, whether B's reason of internal documents is established, and what is sought to be proved using that document. Under the condition that, even if a document bears the same label, the determination of self-use document is made anew when the purpose of preparation and the circumstances of external use change, the ruling may also change if these circumstances change. Only when A's application fixes the specific document, the custody relationship, and the reason for the application, B's reason for refusing production is made clear, and a decision thereon is rendered, can the recognition of the duty to produce and the result of the review of necessity be judged on the record. In this scene, the portions in which the specific document, the custody relationship, the reason for the application, the reason for refusing production, and the decision are not recorded remain undetermined.
The conclusion this section permits is this. Even after a duty to produce is recognized, the court separately examines the necessity as documentary evidence and the relevance of the matter to be proved, and where the document is unnecessary as documentary evidence or the matter to be proved is not directly related to the claim, the court may decline to accept the application for a production order. This is not a denial of the duty to produce but an independent review of the justifiable reason required for the application to be granted, and it prevents the right of access to materials from growing into a right to rummage through internal records of no relevance. The conclusion not permitted is the notion that, on the basis of the duty to produce alone, the court must always order production. To skip the review of necessity merely because a duty to produce has been recognized for the same document, or to treat a rejected application at once as one for which no relief is available, goes beyond this range.
3.8The Scope This Section Undertakes
In the preceding step, the criterion was set out that whether a document is a self-use document is determined not by its title but by its purpose of preparation, its content, the possibility of external use, and the like. Now, taking a document that has passed that determination, a scene unfolds in which the other party's refusal remains as it is. Yet whether the court must always issue a production order merely because the party possessing the document bears a duty to produce it, and how far the scope of this section extends, remains a question.
The text that answers this question is found in Article 347(1) of the Civil Procedure Act. That Article provides that "Where the court recognizes that there is a justifiable reason in a motion for document production, it may, by ruling, order the person possessing the document to produce it." The actor spoken of here is the court, the act is the determination of the motion for document production, and a production order becomes possible only upon the condition that the motion is recognized as having a justifiable reason. Put differently, the text does not establish a structure under which a production order naturally follows from the mere existence of a duty to produce. A production order is a ruling that the court may choose after recognizing the need contained in the motion.
In the same vein, Supreme Court Decision 2014Ma2239 decided July 1, 2016 makes clear that an application for a document production order is not an independent procedure but one form of application for taking of evidence. That precedent premises that "[2] an application for an order directing a person possessing a document to produce it is one of the ways of applying for documentary evidence; therefore, where the court recognizes that the document that is the subject of the application for a production order is not necessary as documentary evidence, it may decline to accept the application for a production order," and adds that "furthermore, if the matter sought to be proved by the document that is the subject of the document production order is not directly related to the claim, it may decline to accept it" (Supreme Court Decision 2014Ma2239 decided July 1, 2016). In sum, documents unnecessary as documentary evidence and matters to be proved that are not directly related to the claim can already be filtered out at the stage of the application to produce, and even after a duty to produce is recognized, the application is not accepted forthwith.
Then how is one to deal with the difficulty that, in order to show relevance in advance, one may need a document one has not yet seen? Because the applicant cannot fix the contents of a document it has not been able to inspect, the document itself is needed in order to show relevance, and yet in order to obtain that very document one is first asked to show relevance—a contradiction arises. This loss and inconvenience are real, but the necessity review cannot be deleted merely on account of the duty to produce. At a minimum, the review of whether the matter to be proved is directly related to the claim, and at what level the document is necessary as documentary evidence, must nonetheless remain. If, in the name of protecting the right of access to materials, all records unrelated to the lawsuit were compelled to be produced at once, the opposing party would bear the burden of producing even records the court will never address. However, the precedent appears to leave this determination to the discretion at the application stage, and it did not instruct that an application be refused merely for lack of materials.
Returning to the synthetic scene, where plaintiff A has filed an application directed at particular approval documents and defendant B has refused them in their entirety on the sole ground that they are internal documents, the court may issue a production order for those documents if the duty to produce documents, relevance, and the need for taking of evidence are recognized and the limitations arising from statutory grounds for protection are satisfied. Conversely, if the duty to produce is not recognized or there is no need for taking of evidence so that the document production application is not accepted, the matter cannot proceed to the remedy stage. The determination must record the specific document, the possession relationship, the reasons for the application, the grounds for refusal to produce, and the ruling, and where it is not specified what the document is or where it is held, a determination itself can hardly be made. Just as the foregoing criterion for self-use documents requires a fresh determination where the purpose of preparation and the circumstances of external use change even though the document cover is the same, so in this scene the label "internal document" affixed by defendant B does not itself become the conclusion. However, the scene alone cannot fix the results of actual service or performance, and no materials on that point have been collected.
Accordingly, what this section permits is not the conclusion that an order must automatically follow from the mere existence of a duty to produce, but the distinction that, as to documents not directly related to the matter to be proved or unnecessary as documentary evidence, the application to produce need not be accepted. What this section does not permit is the path of confirming a production order on the basis of the duty to produce alone, with that necessity review deleted. Even where a duty to produce documents exists, the court examines whether the document is necessary as documentary evidence and whether the matter sought to be proved by it is directly related to the claim, and decides whether to accept the application; and this determination does not forthwith yield results through a separate remedy procedure.
3.9Application of the Text of the Provisions and the Holdings of Precedents
In this scene, the question is opened whether an order must always be issued where a duty to produce exists. What the applied-for approval documents are meant to prove has not yet been made clear, and B's grounds of refusal remain confined to the place of preparation and the internal approval route. In order for the court to decide whether to issue an order between A's application and B's refusal, it must first settle where the seat of determination required by the text lies.
Looking first to the statutory side of the relevant text, Article 347(1) of the Civil Procedure Act provides as follows. "(1) Where the court recognizes that there is a justifiable reason in a motion for document production, it may, by ruling, order the person possessing the document to produce it." Here, "the person possessing the document" means a person asserting possession of the document, including the opposing party; "may order its production" denotes the form of the ruling; and "where it recognizes that there is a justifiable reason" signifies the gate of review that justifies the order. The text does not say that an order issues immediately upon recognition of a duty to produce; it requires first the recognition of a justifiable reason.
Setting this text beside Summary of Decision [2] of (Supreme Court Decision 2014Ma2239 decided July 1, 2016), the stages of determination are divided. Supreme Court Decision 2014Ma2239 decided July 1, 2016 takes the following view. "[2] An application for an order directing a person possessing a document to produce it is one of the ways of applying for documentary evidence; therefore, where the court recognizes that the document that is the subject of the application for a production order is not necessary as documentary evidence, it may decline to accept the application for a production order. Furthermore, if the matter sought to be proved by the document that is the subject of the document production order is not directly related to the claim, it may decline to accept it." According to this, the duty to produce and the need for taking of evidence are distinct determinations. If the former speaks to the status of being obliged to hand over the document, the latter asks whether that document can in fact be used in this lawsuit to bring something to light. Here, a justifiable reason means the procedural necessity that justifies a production order, and documents not directly related to the matter to be proved or unnecessary as documentary evidence need not be accepted for production. If these two determinations are bundled together, the result is that the necessity review is deleted on the basis of the duty to produce alone.
The counterargument that one may need a document one has not yet seen in order to show relevance in advance bears most strongly on this question. Where the document has never been seen, it is difficult to explain its direct relation to the claim without first confirming what is contained in it, and this circumstance stands as a loss. If the right of access to materials is narrowed, A is left with the inconvenience of being unable to approach the approval documents that B possesses. Even so, this counterargument cannot change the stages of determination. The necessity review does not demand advance inspection of the document's contents; it is the place for gauging, at the application stage, the relationship between the matter to be proved as asserted by the applicant and the claim. The circumstance that relevance is difficult to explain is merely a difficulty of review; it cannot serve as a ground for erasing the review itself.
Placing the circumstances of the synthetic scene against the foregoing conditions, B's grounds of refusal consist solely of the reason that they are internal documents. Whether a document is a self-use document is determined not by its title but by its purpose of preparation, its content, the possibility of external use, and the like. Applying this premise, the duty to produce is not fixed by the mere cover of "internal document," and even for documents bearing the same cover, the determination changes if the purpose of preparation and the circumstances of external use differ. However, this scene has settled only the application for and refusal of the approval documents and the reasons therefor; it has not settled what documentary evidence was applied for, what its matters to be proved are, or how the relation to the claim was explained. Accordingly, the necessity as documentary evidence and the direct relation to the claim cannot be fixed from this scene alone, and they remain for the court to determine upon receiving those materials. The facts of an actual case and the results of performance likewise remain unverified.
The conclusion this section permits stays within the relevant text. Even for documents held by the opposing party, if the applied-for document is not necessary as documentary evidence or the matter sought to be proved is not directly related to the claim, the court may decline to accept the application for a production order, and this determination must stand apart from the recognition of a duty to produce. The conclusion that, on the basis of the duty to produce alone, the review of justifiable reason must be skipped and an order issued at once cannot be drawn from this text. However, an interpretation that widens the scope beyond the reasons for the judgment and beyond the text of this paragraph to establish new detailed requirements and exceptions lies outside the scope of this section.
3.10Fine Distinctions Within the Stage
In the scene where plaintiff A applies for the approval documents held by defendant B and defendant B refuses them in their entirety on the ground that they are internal documents, what remains after the question whether an order must always be issued where a duty to produce exists is: what are the parts to be separately decided within the order determination? This question is confined to identifying the subsequent determination that does not end with the mere existence of a duty to produce.
Article 347(1) of the Civil Procedure Act provides that "the court may, where it recognizes that there is a justifiable reason in a motion for document production, order the person possessing the document to produce it by ruling" (Article 347 of the Civil Procedure Act). Here the court is the subject of determination that has received the motion for document production, and the possessor is the counterparty of the production order. The act is an order to produce by ruling, and the condition is the time when it is recognized that there is a justifiable reason in that application. Other issues of the statutory provision do not fall within the scope of this text.
The justifiable reason whose recognition the text of Article 347(1) of the Civil Procedure Act requires means the procedural necessity that justifies a production order (Article 347 of the Civil Procedure Act). The precedent holds that "the court, where it recognizes that the document that is the subject of the application for a production order is not necessary as documentary evidence, may decline to accept the application for a production order. Furthermore, if the matter sought to be proved by the document that is the subject of the document production order is not directly related to the claim, it may decline to accept it" (Supreme Court Decision 2014Ma2239 decided July 1, 2016). The recognition of a duty to produce and the order determination are distinct. The former is whether the possessor bears a duty to produce; the latter is whether that application is justified by procedural necessity. If the second stage, which asks after procedural necessity, is replaced by what the duty to produce has answered, orders will issue without review even for documents unnecessary as documentary evidence or not directly related to the matter to be proved. The precedent took the view that they need not be accepted as such; it did not prohibit the order. In the author's scheme, the detailed distinctions within the stage are limited to the conditions marked as cases that operate, cases that are blocked, and cases that are undetermined, and no new stage may be added here.
The strongest counterargument is aimed at the burden on practice. A document not yet seen cannot have its contents known from the outside; accordingly, in order for the applicant to show relevance in advance, the document itself may conversely be needed. In such a structure, if procedural necessity is demanded as proof at the application stage, the door of access to materials is left to the choice of the party holding the document. Interests such as trade secrets and third-party rights, whose disclosure may cause irreparable harm, are likewise matters for consideration in the same direction. Without denying this loss, the foregoing answer is maintained. Since the precedent cited each of the necessity as documentary evidence and the direct relation to the matters to be proved as grounds for declining to accept the application, the recognition of the duty does not substitute for that review. That the record of the reasons for the application and the grounds for refusal is required is also for the purpose of tracing this remaining determination.
In the synthetic scene, only the fact is settled that defendant B refused to produce the approval documents in their entirety on the ground that they are internal documents. Here, whether that document is necessary as documentary evidence and whether the matter sought to be proved by that document is directly related to the claim are the subjects of decision, and the result is left in the record of the specific document, the possession relationship, the reasons for the application, the grounds for refusal to produce, and the ruling. If the duty to produce documents, relevance, and the need for taking of evidence are recognized and the limitations arising from statutory grounds for protection are satisfied, a production order may come into being; and if the duty to produce is not recognized or there is no need for taking of evidence so that the document production application is not accepted, no order issues. If what the document is, or where it is held, has not been specified, then on this scene alone it is undetermined. That "even where the document cover is the same, if the purpose of preparation and the circumstances of external use change, the determination of a self-use document is made anew" is only a contrast that changes the conditions of that determination, not a fact occurring in this scene.
What this section permits is to distinguish the order determination from the recognition of the duty, and to specify the decisions within it as conditions limited to the necessity as documentary evidence and the direct relation to the matters to be proved. The conclusion that, because a duty to produce exists, an order must unconditionally issue, and the conclusion that the necessity review is deleted on the strength of that duty alone, are not permitted by this section. Conversely, one cannot assert that either side has won merely because the determination of procedural necessity remains. The outcome and performance of the actual case not present in the scene remain undetermined. However, the lack of materials, in that the specification of the document or the possession relationship has not been settled, does not mean immediate unavailability of relief; it means that undetermined items remain in the record. A justifiable reason means the procedural necessity that justifies a production order, and this definition, together with the criterion for determining a self-use document set out by the preceding section, constitutes the conditions of the order determination, but does not itself create a new stage. The question whether, when secrecy and the need for proof overlap, everything must be abandoned is left open.
3.11Synthesis of Effectiveness, Blockage, and Undetermination
앞서 자기이용문서 여부는 명칭이 아니라 작성 목적과 내용과 외부 이용 가능성 등으로 판단한다는 결론을 전제로 하면, 지금 남는 물음은 신청의 최종 단계다. 원고 A는 피고 B가 가진 결재문서를 신청하고 피고 B는 내부문서라는 이유로 전부 거부하는 장면에서, 법원이 내릴 수 있는 결정의 종류를 실효·차단·미확정으로 어떻게 나누는가.
제출의무가 있으면 언제나 명령해야 하는가? 이 물음에 답하는 근거로 민사소송법 제347조는 "법원은 문서제출신청에 정당한 이유가 있다고 인정한 때에는 결정으로 문서를 가진 사람에게 그 제출을 명할 수 있다"라고 정한다. 이 문언은 행위의 주체를 법원으로, 대상 행위를 결정에 의한 제출명령으로, 조건을 신청에 정당한 이유가 있다고 인정한 때로 정한다. 따라서 조문이 요구하는 것은 신청이 접수되었다는 사실만이 아니라, 그 신청에 법원이 인정할 소송상 필요가 있다는 판단이다. 여기서 필요한 것은 문서의 위치가 아니라 신청 자체의 정당성에 관한 판단이다.
두 판단은 서로 다른 단계에 놓인다. 하나는 증거조사의 도구로서 해당 문서가 쓸모 있는지, 다른 하나는 그 문서로 증명하려는 사항이 다툼의 대상과 맞닿아 있는지다. 전자가 성립해도 후자가 빠지면 신청은 수용되지 않고, 후자가 분명해도 전자가 없으면 같은 결과를 피하기 어렵다. 그래서 실효의 조건은 제출의무·관련성·증거조사 필요가 함께 서고 법정 보호 사유에 따른 한계를 넘지 않는 경우다.
그렇다면 반론은 정면으로 이 구분을 겨냥한다. 아직 보지 못한 문서가 어떻게 청구와 관련 있는지 미리 보여줄 수 있느냐는 것이다. 신청인이 문서 내용을 모른 채 관련성을 입증해야 한다면 요구된 증명은 사실상 불가능하고, 결과적으로 정보를 가진 쪽이 그 벽 뒤에 숨는다. 두 가지 손실 모두 실제로 무겁다. 법정 보호 사유에 따른 한계는 그대로 남기면서, 증거조사 필요라는 문턱을 지우지 않는 선에서만 열리는 조건을 정하기 때문이다. 신청의 필요성이 낮은 것은 차단의 근거가 되고, 그렇지 않은 것은 검토의 대상이 된다.
이 장면에서 신청의 운명은 이 기준에 비추어 갈린다. 피고 B가 내부문서라는 이유로 전부 거부한 사정만으로는 결정의 결과가 이미 정해지지 않는다. 문언상 자기이용문서 여부는 명칭이 아니라 작성 목적·내용·외부 이용 가능성 등으로 판단해야 하므로, 거부의 표지만으로 법정 보호 사유가 성립한지 볼 수 없다. 한편 문서가 무엇인지, 어디에 보유되는지 특정되지 않았다면 실효도 차단도 확정할 수 없다. 미확정은 자료 부족의 상태이며 곧바로 구제 불능이 아니다.
3.12Conclusion Carried Over to the Next Section
앞 절까지의 결론은 자기이용문서 여부를 명칭이 아니라 작성 목적·내용·외부 이용 가능성 등으로 판단한다는 한 문장으로만 이어받는다. 이 기준을 전제로 삼을 때 원고 A는 피고 B가 가진 결재문서를 신청하고 피고 B는 내부문서라는 이유로 전부 거부하는 장면에서, 제출의무가 인정되면 법원은 언제나 제출을 명령해야 하는가 하는 물음이 남는다.
이 물음에 대해 민사소송법 제347조는 “법원은 문서제출신청에 정당한 이유가 있다고 인정한 때에는 결정으로 문서를 가진 사람에게 그 제출을 명할 수 있다”라고 정한다. 문언은 문서를 가진 사람이라는 주체와 결정으로 제출을 명한다는 행위를 특정하면서도, 정당한 이유가 인정될 때에 한하여 명할 수 있다고 조건을 붙이고 있어 의무적 명령을 정한 것으로 읽히지 않는다.
같은 방향에서 대법원 2016. 7. 1. 자 2014마2239 결정은 “문서를 가진 사람에게 그것을 제출하도록 명할 것을 신청하는 것은 서증을 신청하는 방식 중의 하나이므로, 법원은 제출명령신청의 대상이 된 문서가 서증으로서 필요하지 아니하다고 인정할 때에는 제출명령신청을 받아들이지 아니할 수 있다”라고 설시한다. 증명사항과 직접 관련이 없거나 서증으로 불필요한 문서는 제출신청을 받아들이지 않을 수 있다는 구별은, 문서제출의무가 인정된다는 판단과 그 문서가 이 소송에서 서증으로 쓰일 필요가 있다는 판단을 서로 다른 단계로 나눈다. 전자가 서증 신청의 한 방식을 가리키는 신청의 성격에 관한 것이라면 후자는 그 신청을 실제로 받아들일지에 관한 소송상 필요의 판단이므로, 제출의무만으로 필요성 심사를 삭제할 수는 없다.
그렇더라도 제출의무의 성립 자체를 좁게 잡아 자료 접근을 봉쇄하면, 증명에 필요한 문서가 법원의 판단 밖에 남는 손실이 생긴다. 특히 관련성을 미리 보여주려면 아직 못 본 문서가 필요할 수 있다는 반론은 문서 내용을 확인하기 전에는 관련성을 다툴 수 없다는 불편을 겨냥한다. 다만 저자는 이 불편을 인정하면서도 자료 접근의 권리가 무관한 내부기록을 뒤지는 권리로 커져서는 안 된다는 절제를 유지하고, 정당한 이유라는 소송상 필요의 심사를 생략하는 결론을 받아들이지 않는다. 반론이 지적한 입증의 난점은 심사를 생략할 사유가 되지 못한다.
합성 장면에서 확인되는 사실은 원고 A가 피고 B가 가진 결재문서의 제출을 신청하고 피고 B가 내부문서라는 이유로 전부 거부했다는 것뿐이다. 이 장면만으로는 해당 문서가 서증으로서 필요한지, 증명하고자 하는 사항이 청구와 직접 관련이 있는지가 확정되지 않으므로 해당 신청의 수용 여부는 미확정으로 남는다. 다만 문서 표지가 같아도 작성 목적과 외부 이용 사정이 바뀌면 자기이용문서 판단을 다시 한다는 조건을 대조할 때, 내부문서라는 표시만으로 전부 거부한 사정은 정당한 이유에 관한 소송상 필요의 심사를 대체하지 못한다.
이 절에서 허용되는 결론은 문서제출의무가 인정되더라도 법원이 서증으로서의 필요와 청구와의 직접 관련성을 함께 살펴 제출명령 신청을 받아들이지 않을 수 있다는 구별이며, 허용되지 않는 결론은 제출의무만으로 법원이 언제나 명령해야 한다는 단정이다. 미확정 사항을 확정으로 바꾸지 않은 채 남겨 두는 것도 같은 경계 안에 있다. 비밀과 증명의 필요가 겹치면 전부 포기해야 하는가?