가사소송법 전부개정과 실질적 절차보장 (The General Revision of Family Litigation Act and Substantial Procedural Guarantee)

서지정보

· 발행기관 : 한국민사소송법학회
· 수록지 정보 : 민사소송 / 21권 / 2호 / 171 ~ 221페이지
· 저자명 : 김원태

초록

This study set out to introduce a couple of systems from the perspective of substantial procedural guarantee for the parties concerned and their related people in the Ministry of Justice's general revision bill for the Family Litigation Act. The current Family Litigation Act has been pointed out for its lack of procedural fundamental right guarantee for the parties concerned and their related people in family cases, and its general revision bill had added provisions to compensate for it but still has some remaining tasks.
The general revision bill of Family Litigation Act has an independent provision(Article 28) saying that individuals with mental capacity basically have family litigation capacity. Despite the provision, however, minors, wards under limited guardianship(applied only to individuals with consent deference), and wards under adult guardianship are allowed only for litigation acts of first instance(including a response to a counteraction) and appeals as active parties concerned in family litigation cases on family relations. When people with limited legal abilities have litigation capacity, their legal representatives can engage in litigation acts after getting an approval from the family court. From the moment when their legal representatives represent them in a litigation act, people with limited legal abilities have litigation capacity no longer. The bill also stipulates that the Civil Procedure Code's provisions on special representatives should be followed in domestic litigation and family non-litigation procedures with no separate provisions added. In the future, it should add i ts own provisions by taking into account the unique nature of domestic litigation.
The general revision bill of Family Litigation Act has a principle that the family court should be obliged to listen to the statements of children under age without asking their age when they are the parties concerned or interested parties in the case. It also has a provision(Article 20) that their statements will not be heard as an exceptional case when they are not capable of giving a statement or when their statements can damage their welfare. In addition, the procedural assistant system was introduced(Article 16), given the gravity of family case results for children under age. Procedural assistant help to understand the intentions of children under age accurately and assist them in the trial procedures.
The general revision bill of Family Litigation Act has a principle provision on immediate appeals in the Family Litigation Act and moves the provision on individual immediate appeals in the family litigation regulations to the Family Litigation Act in its arrangement efforts(see Clauses 1~3 of Article 74). It adds two new provisions: one says that the family court is obliged to give the parties concerned a chance to express their opinions about the results of examining evidence by authority(Article 67, Clause 3), and the other says that the parties concerned are obliged to cooperate in the ex officio investigation of the family court(Article 67, Clause 4 and Article 32, Clause 3).
The general revision bill of Family Litigation Act also adds a new provision that when there is the other party in a family non-litigation case, the family court should have the copy of a decision bill or its report delivered to the other party(Article 60, Clause 1). When there is a family case on family relations, the family court should have the fact of case continuance delivered to the interested parties according to the regulations of Supreme Court including the individuals whose inheritance order or amount can be changed and the ones whose status and property relations can be gravely influenced by the case results.
The general revision bill of Family Litigation Act contains no provisions on the international jurisdiction of family cases and the approval and execution of overseas family trials and thus needs to consider the addition of those provisions in the future.

영어초록

This study set out to introduce a couple of systems from the perspective of substantial procedural guarantee for the parties concerned and their related people in the Ministry of Justice's general revision bill for the Family Litigation Act. The current Family Litigation Act has been pointed out for its lack of procedural fundamental right guarantee for the parties concerned and their related people in family cases, and its general revision bill had added provisions to compensate for it but still has some remaining tasks.
The general revision bill of Family Litigation Act has an independent provision(Article 28) saying that individuals with mental capacity basically have family litigation capacity. Despite the provision, however, minors, wards under limited guardianship(applied only to individuals with consent deference), and wards under adult guardianship are allowed only for litigation acts of first instance(including a response to a counteraction) and appeals as active parties concerned in family litigation cases on family relations. When people with limited legal abilities have litigation capacity, their legal representatives can engage in litigation acts after getting an approval from the family court. From the moment when their legal representatives represent them in a litigation act, people with limited legal abilities have litigation capacity no longer. The bill also stipulates that the Civil Procedure Code's provisions on special representatives should be followed in domestic litigation and family non-litigation procedures with no separate provisions added. In the future, it should add i ts own provisions by taking into account the unique nature of domestic litigation.
The general revision bill of Family Litigation Act has a principle that the family court should be obliged to listen to the statements of children under age without asking their age when they are the parties concerned or interested parties in the case. It also has a provision(Article 20) that their statements will not be heard as an exceptional case when they are not capable of giving a statement or when their statements can damage their welfare. In addition, the procedural assistant system was introduced(Article 16), given the gravity of family case results for children under age. Procedural assistant help to understand the intentions of children under age accurately and assist them in the trial procedures.
The general revision bill of Family Litigation Act has a principle provision on immediate appeals in the Family Litigation Act and moves the provision on individual immediate appeals in the family litigation regulations to the Family Litigation Act in its arrangement efforts(see Clauses 1~3 of Article 74). It adds two new provisions: one says that the family court is obliged to give the parties concerned a chance to express their opinions about the results of examining evidence by authority(Article 67, Clause 3), and the other says that the parties concerned are obliged to cooperate in the ex officio investigation of the family court(Article 67, Clause 4 and Article 32, Clause 3).
The general revision bill of Family Litigation Act also adds a new provision that when there is the other party in a family non-litigation case, the family court should have the copy of a decision bill or its report delivered to the other party(Article 60, Clause 1). When there is a family case on family relations, the family court should have the fact of case continuance delivered to the interested parties according to the regulations of Supreme Court including the individuals whose inheritance order or amount can be changed and the ones whose status and property relations can be gravely influenced by the case results.
The general revision bill of Family Litigation Act contains no provisions on the international jurisdiction of family cases and the approval and execution of overseas family trials and thus needs to consider the addition of those provisions in the future.

참고자료

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