16 Dec 2009

Comparative Civil Justice: United States, Germany and Korea compared

In a series of papers making their rounds on SSRN, four scholars have authored four papers (as a part of the book) to compare the civil justice in three countries. James R. Maxeiner of University of Baltimore School of Law, Gyooho Lee of Chung-Ang University School of Law, Armin Weber and Harriet Weber compare United States, Germany and Korea.

Chapter One 'introduces the shared purposes and goals of civil justice systems generally, sets out what it means to "think like a lawyer," identifies the principal sources of law in statute and precedent, and gives historical information important to understanding each of the three systems. Unlike the other chapters in the book, this chapter emphasizes attributes that the three systems share. Relying on the "open courts" clause of the Maryland Declaration of Rights, characteristic of other similar declarations of the late eighteenth century, as well as on their spiritual forerunner, section 40 of Magna Carta, this chapter identifies four criteria for use throughout the book to measure the respective systems: (1) accuracy according to law and justice, (2) procedural fairness, (3) access to justice and (4) efficiency.' [The same can be accessed from here]

Chapter Two 'sets out the facts of the hypothetical case used throughout the book as a teaching tool and can be accessed from here. Chapter Three shows how the American legal system, compared to its German and Korean counterparts, does a poor job of providing access to justice. It points out how the American practice of no recovery of legal fees, high fees for all, and lack of provision of civil legal aid, discourages righteous litigants in ordinary cases. The chapter shows how the German and Korean systems do a better job of providing access for all to the legal system. It shows that both systems make righteous litigants nearly whole by using “loser pays” systems, which helps keep legal fees for all low. It shows how both systems provide better access to civil justice for the indigent. The German system guarantees the indigent civil legal aid; the Korean system makes pro se representation a real possibility in most civil cases. The chapter also gives brief descriptions of the instrumentalities of civil justice, i.e., lawyers, judges, legal education and ministries of justice. It observes that there is no institution in the United States to look out for the common good in litigation that is comparable to ministries of justice in Germany and the Supreme Court in Korea.' [The same can be accessed from here]

Chapter Four 'shows how the American system pointlessly makes issues of jurisdiction complicated and expensive. It shows how the German and Korean systems resolve these same issues without expenditure of significant resources. The chapter also provides brief descriptions of the civil courts systems in the United States, Korea and Germany. It includes a Special Comment on why forum shopping is a feature of American litigation, but not of German or Korean cases' and can be accessed from here.

Chapter Five 'shows how American systems of pleading have failed either to direct parties and judges to material matters in dispute or to bound the dispute to produce fair and efficient decisions. It shows how American pleading has sung from one extreme of strictly limiting the subject matter of the lawsuit to allowing everything to be considered with unfortunate results for efficiency and privacy. The chapter shows how German and Korean systems use pleadings to guide courts in finding and resolving material issues in dispute and to bound the scope of the dispute to the substantive rights claimed by plaintiffs and thereby keeping the costs of litigation proportionate to amounts in dispute. This chapter discusses the “back-and-forth” phenomenon of litigation, that is, that facts and legal rules are mutually interdependent. Until one knows the facts, one does not know which legal rules apply to govern them. But until one knows which rules govern, one does not which facts are material. This phenomenon is infrequently recognized in any of the three systems of civil justice. It has frustrated the American system in successfully applying law, while it has not frustrated the German and Korean systems.' [The same can be accessed from here]

Chapter Six 'shows that the American civil justice system denies most litigants their right to be heard by judge or by jury. Thanks to the disappearance of juries, rarely do American courts provide opportunity for litigants to “tell it to the judge.” Trials are goners. Discovery is what passes for American process. The chapter explains discovery to non-Americans and non-professionals and shows how expensive it is and how little it may have to do with material matters in dispute between the parties. This chapter shows how German and Korean courts give all cases hearings in the presence of and with the participation of the parties. Parties and judges work together to determine whether facts fulfill the objective elements of legal rules. This chapter reaches a number of conclusions that may surprise American readers: (1) American procedures are inquisitorial, while German or Korean procedures are not. (2) American procedures deny parties their day in court, while German and Korean procedures safeguard the day in court. (3) American procedures produce surprise; German and Korean procedures do not.' [The same can be accessed from here]

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