간이법원 설치에 관한 소고

Abstract

Judicious, speedy, and cost-effective progress in a lawsuit is an ideal condition pursued in both criminal and civil trials. However, an aggravated burden on judges in terms of increased trials and limited judicial materials and human resources have made it unsatisfactory of a trial process or its results. Leaving it unresolved would naturally be followed by suspension or decreased quality of trials, which will cause distrust of the legal system on citizen’s part for both ‘judiciousness’ and ‘speediness and cost-effectiveness’ aspects. There are two approaches to resolve such problems; one is to reduce total number of trials via extension of preventive legal services, revitalization of grievance mediation as conciliation off-court, or decriminalization of lesser offences such as public order offences; the other is to bifurcate court system and the litigation process to present a case more efficiently with accordingly and evenly distributed legal materials and cases. In this study, installation of summary court is discussed concentrating more on the latter technique. Summary court benefits from irregularity of the legal system, subjects to minor offences, simplicity and immediacy of litigation, limitation to appeal, convenience and easy access of the people. As shown in the statistics of as-is system to process cases, municipal and district court seem to be dysfunctional dealing with minor legal proceedings. This could be blamed on the incoherent contents of each case but fundamentally it also could be due to the lack of reinforcement under court's wings. As it may face some limitation adhering to as-is system of summary court with a single kind of judges or only to municipal and district court resolving these issues, therefore, urgently needed is ‘customized court by case’ which sets apart minor cases of quick treatment from the rest with different types of judges each specialized in diversified litigation processes maximizing effective application of legal materials while keeping budget under the bar. As demonstrated in most foreign countries that lesser offences are processed with special procedures more swiftly while serious offences are acutely processed with formalities, it is suggested that its contents provide a lot of hint on installation of summary court in our country. Ever since the foundation of Ordinance of Court Organization Law by interim government law, installation of summary court has been continuously discussed and the detailed measures include appointing lawyers without certain requisites or retired judges for the positions of summary court judge, assigning small claimed civil cases that are more frequent in daily basis regarding complaints and criminal cases only with monetary penalty except for the frequent theft, assault, bodily harm that would be sentenced under one year in prison. In cases of territorial jurisdiction, all parts of the country may be subjected to summary court installed at least one in each city, district, and county. In the case of litigation proceedings, civil cases apply Exception Law from current small claims jurisdiction and if a case is much smaller, then as in the summary courts of Japan a verdict is adjudicated right away on the same day with special procedures of evidence-investigation. For criminal cases, simplified hearings in as-is system are conjugated and altered German ‘Strafprozussualen Summarischen Verfahrens’ and Japanese ‘summary jurisdiction policy’, ‘3person-the-same-day-policy’ are applied. Rights to choose an option of the appropriate legal action is given to the subject and Dreiinstanzensystem of as-is system is maintained, however, to enhance the function of Supreme Court as the policy-making court Appeal Permit System could be imposed or an appellant court could be come a High Court.