법원의 소송지휘권 행사와 변론재개결정

Abstract

Normally, court has the power of pronouncing many decisions or orders forcing parties at civil oral proceedings. Court is given discretion to pronounce decisions or orders, because of special peculiarities of civil procedure which situations make progress step by step and complicated legal issues are raised at any time. The decisions about reopening of oral proceedings also belong to civil court’s discretion and parties have no power to object those decisions. From the idea and goal of civil procedure(justice, dispute resolution, all the parties should be given balanced opportunity to present their claim etc.), court’s discretion must be restrained. If a party is intimately involved in the adjudicatory process and feels he has been given a fair opportunity to present his case, he is likely to accept the results whether favorable or not. So, giving fair opportunities to parties is very important in the reopening decision of oral proceeding. At October 28th, 2010, the Korean Supreme Court pronounced a judgement(2010다20532) about ultimate facts on reopening of oral proceedings. That judgement defines four ultimate facts as below ;① The party who makes an application to reopen of oral proceedings must not be open to get the blame against that he(she) submits allegations and evidence lately after the closing of oral proceedings. ② Those facts are the key point of judgement. ③ If the court reject the motion of the party, it will be unjustified because of ignoring the right of party being fairly dealt and his procedural rights. ④ If the court has missed the duty of ranging over the entire case for the issue of law or fact that might dispose of the case.