심리구조의 변화 – 변론준비절차와 변론절차 - (Changes in Trial Structure under the New Korean Civil Procedure Act)

서지정보

· 발행기관 : 한국민사소송법학회
· 수록지 정보 : 민사소송 / 21권 / 1호 / 179 ~ 228페이지
· 저자명 : 권혁재

초록

In this study, looking back over various measures attempted by the court to reform the trial procedures of the civil proceedings in Korean court since the 1990s, the problems thereof are reviewed. The core of discussion on the trial procedures reform can be summarized in the discussion on whether the preparation for argument necessarily required as a realization method should be centered on writing(preliminary pleading; brief) or oral statement under the major premise on the realization by the court of the principle of direct examination, the principle of concentration examination, the principle of substantial oral examination. According to the new Korean Civil Procedure Act enforced on July 1, 2002, if the defendant submits a response within the time limit and disputes the plaintiff's claim, the case is submitted to the procedures of preparation for argument uniformly, and in the first place the procedures for arranging the contentious issues are progressed on the basis of writing(brief). The purport intended by the new act to start the preparatory procedures in a writing method in the first place was that the preparations shall be made in advance through offense and defense to minimize the progress of trial date and enable a trial to be held properly. After going through the preparatory procedures in a writing method, the presiding judge may proceed to date of preparation for argument (date of arranging the contentious issues) in oral method if necessary. The date of arranging the contentious issues is the process to implement the spirit of the principle of oral statement by both parties having the opportunity to confirm, argue and refute the contentious issues in the presence of the judge. The trial method in the civil proceedings summarized as the preparatory proceedings for argument in advance and the enforcement of concentrated oral argument in the above was assessed to have achieved the good results to some extent.
However, in fact the reality was that most courts have partially followed the new model or have taken it only in the external form. Like this, the main reasons why the trial procedures under the new act failed to become established were pointed out in the order of the excessive work load of the presiding judges, the non-cooperation of the lawyers out of office and the parties, the neglect of formal and mechanical offense and defense in by the method of written brief, and the lack of roles of participating officers, etc. It was also a problem that under the new act, almost all the merits of civil cases were required to go through the procedures for arranging the contentious issues through offense and defense by written brief in advance, causing the delay of the proceedings and obstructing the practice of oral trial with the actual communication between the judges and the parties.
In order to solve these problems, the Supreme Court took measures including the opening of date for argument after changing the number of times of offense and defense in writing to only one time in principle from the formal 2 times for each party of plaintiff and defendant. However, since 2007, the perception has been generalized that the actual alternative to solve the complaints of the parties about the delay in trial procedures and eliminate the obstacles to the realization of the principle of concentrated trial is the method of the early first trial date.
Based on the justification specified by the Supreme Court in Dec. 2008 that a trial centering on argument date shall be implemented by converting the designation of argument date to the method of case management in principle, it made clear that the remittance to preparatory proceedings for argument in advance was an exceptional trial method by specifying in the Civil Proceedings Act (new act) Article 258 that the argument date shall be designated immediately after the receipt of case in principle.
In the meantime, through the revised established rules for trial, also under the revised act in 2008, the purport was specified that on the first early trial date, in principle it was necessary to finish the investigations on evidences except for the investigations on witnesses and the parties concerned including the invocation of submitted evidences, adoption and acception of written evidences, and that on the second argument date the investigations on witnesses shall be made intensively. Despite these provisions, in order to ensure that the arrangement of contentious issues and the investigations on evidences faithful to the argument date designated as early as possible (‘immediately’) without going through the preparatory proceedings for argument in advance, there should be taken the necessary measures to reduce the work burden for each judicial officer, etc. in the first place through the measure of a great increase in the number of judicial officer, etc.

영어초록

In this study, looking back over various measures attempted by the court to reform the trial procedures of the civil proceedings in Korean court since the 1990s, the problems thereof are reviewed. The core of discussion on the trial procedures reform can be summarized in the discussion on whether the preparation for argument necessarily required as a realization method should be centered on writing(preliminary pleading; brief) or oral statement under the major premise on the realization by the court of the principle of direct examination, the principle of concentration examination, the principle of substantial oral examination. According to the new Korean Civil Procedure Act enforced on July 1, 2002, if the defendant submits a response within the time limit and disputes the plaintiff's claim, the case is submitted to the procedures of preparation for argument uniformly, and in the first place the procedures for arranging the contentious issues are progressed on the basis of writing(brief). The purport intended by the new act to start the preparatory procedures in a writing method in the first place was that the preparations shall be made in advance through offense and defense to minimize the progress of trial date and enable a trial to be held properly. After going through the preparatory procedures in a writing method, the presiding judge may proceed to date of preparation for argument (date of arranging the contentious issues) in oral method if necessary. The date of arranging the contentious issues is the process to implement the spirit of the principle of oral statement by both parties having the opportunity to confirm, argue and refute the contentious issues in the presence of the judge. The trial method in the civil proceedings summarized as the preparatory proceedings for argument in advance and the enforcement of concentrated oral argument in the above was assessed to have achieved the good results to some extent.
However, in fact the reality was that most courts have partially followed the new model or have taken it only in the external form. Like this, the main reasons why the trial procedures under the new act failed to become established were pointed out in the order of the excessive work load of the presiding judges, the non-cooperation of the lawyers out of office and the parties, the neglect of formal and mechanical offense and defense in by the method of written brief, and the lack of roles of participating officers, etc. It was also a problem that under the new act, almost all the merits of civil cases were required to go through the procedures for arranging the contentious issues through offense and defense by written brief in advance, causing the delay of the proceedings and obstructing the practice of oral trial with the actual communication between the judges and the parties.
In order to solve these problems, the Supreme Court took measures including the opening of date for argument after changing the number of times of offense and defense in writing to only one time in principle from the formal 2 times for each party of plaintiff and defendant. However, since 2007, the perception has been generalized that the actual alternative to solve the complaints of the parties about the delay in trial procedures and eliminate the obstacles to the realization of the principle of concentrated trial is the method of the early first trial date.
Based on the justification specified by the Supreme Court in Dec. 2008 that a trial centering on argument date shall be implemented by converting the designation of argument date to the method of case management in principle, it made clear that the remittance to preparatory proceedings for argument in advance was an exceptional trial method by specifying in the Civil Proceedings Act (new act) Article 258 that the argument date shall be designated immediately after the receipt of case in principle.
In the meantime, through the revised established rules for trial, also under the revised act in 2008, the purport was specified that on the first early trial date, in principle it was necessary to finish the investigations on evidences except for the investigations on witnesses and the parties concerned including the invocation of submitted evidences, adoption and acception of written evidences, and that on the second argument date the investigations on witnesses shall be made intensively. Despite these provisions, in order to ensure that the arrangement of contentious issues and the investigations on evidences faithful to the argument date designated as early as possible (‘immediately’) without going through the preparatory proceedings for argument in advance, there should be taken the necessary measures to reduce the work burden for each judicial officer, etc. in the first place through the measure of a great increase in the number of judicial officer, etc.

참고자료

· 없음