한국과 중국의 민사소송제도-변론절차를 중심으로 본 비교법적 고찰- (Civil Procedure between Korea and China – Focus on the comparison of the pleading procedure -)

서지정보

· 발행기관 : 충북대학교 법학연구소
· 수록지 정보 : 법학연구 / 25권 / 2호 / 147 ~ 171페이지
· 저자명 : 우세나

초록

I think the study of “the comparison of civil procedure between Korea andChina” is meaningful work in these circumstances. There is a lot ofcommercial trades between Korean and Chinese companies and people,which generates increasing litigations.
In Chinese courts, the role of judges and prosecutors is bigger than partiesin some cases and the power of the nation influences parties more than indemocratic nations. But Chinese people trade with foreign companies andcapital, so they need to improve their civil procedure closer to capitalismand democracy although their culture and the national character iscommunist.
China civil procedure was established in 1991 and amended twice in 2007,2012. China is a communist and capitalist nation, so there are big differencesbetween china and other democratic and capitalist nations.
The adversary system, pleading procedure, principle of disposition areconsidered very important in Korea civil procedure. Through these principlesKorea court gives parties more freedom than compulsion and gives partiesrights to select from filing a lawsuit to conclusion of an action. In Korea court,the legal procedure is guaranteed strictly so parties are protected fromunexpected verdicts that they don’t assert and protest in their cases. In China, recent amended civil procedure regulate the principle of goodfaith and makes the submission obligation of evidence, jurisdiction, mediationprecedence system etc. This amendment receive a favorable evaluationbecause they make the amended civil procedure appropriate to the streamof times. But China makes the supervisory authority of prosecution stronglyalso in this amended civil procedure. This is particularly pertinent in thetransitional period where China will have to get used to the new ways ofthe regulations of the democratic and capitalistic nations very quickly.
In Korea, parties file their suit three times and they can’t act for renewalof procedure except particular cases and only parties can act for theirrenewal of procedure written on the Korea civil procedure.
But In China, parties file their suit two times and especially judges andprosecutors can act for parties renewal of procedure, irrespective of partiesminds. And in recent amended civil procedure, Supreme people’s court andSupreme people’s Prosecutor have their authorities to interpose parties civilexecution procedure through their judical analysis.
In China, the power of prosecutors and judges let us know the reality ofchina. Apart from political reason, China is the multiethnic state and havewide territory, there are difficulties to operate legal system, so China judgesand prosecutors say they have to find the substantial truth of partiesthemselves.
Through anaysis of the comparison of two nations, I am going to get hintpoints. For that purpose, I studied the comparison of civil procedure betweenKorea and China and researched focused on the pleading principle includingother procedure and the meaning and improvements of China regulation.

영어초록

I think the study of “the comparison of civil procedure between Korea andChina” is meaningful work in these circumstances. There is a lot ofcommercial trades between Korean and Chinese companies and people,which generates increasing litigations.
In Chinese courts, the role of judges and prosecutors is bigger than partiesin some cases and the power of the nation influences parties more than indemocratic nations. But Chinese people trade with foreign companies andcapital, so they need to improve their civil procedure closer to capitalismand democracy although their culture and the national character iscommunist.
China civil procedure was established in 1991 and amended twice in 2007,2012. China is a communist and capitalist nation, so there are big differencesbetween china and other democratic and capitalist nations.
The adversary system, pleading procedure, principle of disposition areconsidered very important in Korea civil procedure. Through these principlesKorea court gives parties more freedom than compulsion and gives partiesrights to select from filing a lawsuit to conclusion of an action. In Korea court,the legal procedure is guaranteed strictly so parties are protected fromunexpected verdicts that they don’t assert and protest in their cases. In China, recent amended civil procedure regulate the principle of goodfaith and makes the submission obligation of evidence, jurisdiction, mediationprecedence system etc. This amendment receive a favorable evaluationbecause they make the amended civil procedure appropriate to the streamof times. But China makes the supervisory authority of prosecution stronglyalso in this amended civil procedure. This is particularly pertinent in thetransitional period where China will have to get used to the new ways ofthe regulations of the democratic and capitalistic nations very quickly.
In Korea, parties file their suit three times and they can’t act for renewalof procedure except particular cases and only parties can act for theirrenewal of procedure written on the Korea civil procedure.
But In China, parties file their suit two times and especially judges andprosecutors can act for parties renewal of procedure, irrespective of partiesminds. And in recent amended civil procedure, Supreme people’s court andSupreme people’s Prosecutor have their authorities to interpose parties civilexecution procedure through their judical analysis.
In China, the power of prosecutors and judges let us know the reality ofchina. Apart from political reason, China is the multiethnic state and havewide territory, there are difficulties to operate legal system, so China judgesand prosecutors say they have to find the substantial truth of partiesthemselves.
Through anaysis of the comparison of two nations, I am going to get hintpoints. For that purpose, I studied the comparison of civil procedure betweenKorea and China and researched focused on the pleading principle includingother procedure and the meaning and improvements of China regulation.

참고자료

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