국제중재에서 미국과 일본의 증거조사절차에 관한 연구: 비교법적 관점을 중심으로

초록

This study investigates and compares the procedures of evidence ofUnited States and Japan in the perspective of international commercialarbitration. First, we show that the main currents of arbitration of UnitedStates and Japan. In United States, the concepts of court changes intomulti-door courthouse and there are diverse kinds of ADR includingarbitration. On the other hand, in Japanese society, there are cultural rootsof ADR, such as harmony in rural society. Second, we compare pros andcons of common law system and civil law system, since United Statesbelongs to the category of common law system and Japan belongs to thecategory of civil law system. Third, we compare the common elements anddifferences among the laws and practices of the procedures of evidence ininternational arbitration between United States and Japan. The evidence presented in the arbitration tribunal consists ofdocuments, testimony of witnesses and experts, and site experiment etc. The main difference among United States and Japan originated from thefact that discovery plays an important role in United States. In contrast,there is no discovery type of evidence-gathering process in Japan. Second,hear-say evidence can be accepted in both countries, United States andJapan. Third, the deposition is accepted even in law system United States,But, the deposition is not permitted in Japan as yet. Although, there are differences in the practices of common law counsel and civil law counsel,there is a tendency of narrowing the gap between two traditions of lawsystem. The IBA rules of evidence shed a light on this issue.

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