Practical Global Civil Justice: Decision According to Law in the United States, Germany and Korea: Chapter 6 Process: The Right to Be Heard
77 Pages Posted: 16 Nov 2009 Last revised: 14 Dec 2010
Date Written: February 5, 2010
This paper is superseded by a later draft of the complete book, which is available at http://ssrn.com/abstract=1711003.
This is a working draft of a chapter in a book that introduces and compares civil justice systems in the United States, Germany and Korea. This chapter 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.
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