CHOICE OF JUDGES IN CIVIL PROCEEDINGS

07/01/2004

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The 1999 National Conference for Judicial Re-form proposed that the parties to civil litigation should be accorded the right to jointly nominate the judge to hear their case. Accordingly, since September 2003, under the Provisional Act on the Joint Nomination of Trial Judges in Civil Litigation, parties to civil suits can nominate judges in the first-instance proceedings. To further protect the interests of civil litigants, the Act was amended on 9 June 2004 to expand the scope of the choice.

Before the amendment, litigants could choose the judge only for first-instance proceedings; in exchange, the parties could not appeal to a sec-ond-instance court. The lack of the right to ap-peal greatly reduced the parties' incentive to make this choice. In view of this, the amendment allows parties to also choose judges for sec-ond-instance proceedings, and removes the ban on appeals.

The parties are not required to pay an additional fee for joint nomination of a judge. However, the nomination mechanism is only open to civil litigants—it does not apply to criminal cases. The procedure of the nomination and the related time limits are as follows:

First-instance proceedings: The parties may agree, in writing, on the nomination of a single judge at the time the suit is filed, or by the first date scheduled for preparatory proceedings. If the case must be heard by a panel of three judges, the parties may jointly nominate the three judges, or each party may nominate a single judge, after which the two nominated judges will jointly nominate a third judge to constitute the panel. If a party objects within 10 days after receiving notice of the choice of the third judge, the agreement on nomination of judges will be deemed to have been with-drawn. At present, seven major district courts are implementing this mechanism on an ex-perimental basis.

Second-instance proceedings: Except in cases in which a High Court is the court of first in-stance, the parties may agree on the joint nomination of the judges for the sec-ond-instance proceedings at the time the ap-peal is filed, or by the first date scheduled for preparatory proceedings. Currently this sys-tem is being implemented on an experimental basis.

The parties' rights to procedural remedies after nomination of a judge, including the right to move to disqualify the judge, and the right to appeal against a judgment or an order remain unaffected, and are still to be handled pursuant to the Code of Civil Procedure. The period of va-lidity of the Act is also extended from September 5, 2004 to September 5, 2006.