가사소송에 있어서 합의에 상당한 심판제도에 관한 연구

Abstract

The starting point for the discussion in earnest on "the adjudgment system equivalent to agreement" first begins from the relationship of legislation history on family litigation procedure of Korea and Japan. It can be known that the Family Litigation Act of Korea has absorbed many contents of the Personal Lawsuit Act and Family Adjudgment Act of Japan. Of course, there are some differences, but, one cannot help acknowledging that they are considerably similar through the general contents of legislation history. That is, the structure and contents of family dispute resolution procedure of Japan are very similar to those of current family dispute resolution procedure of Korea. More accurately, the Family Litigation Act of Korea was enacted on the basis of the Personal Lawsuit Act and Family Adjudgment Act of Korea influenced by the Personal Lawsuit Act and Family Adjudgment Act of Japan. Their differences from the Japanese regulations are nothing but the opinions of drafters at the time of enactment of the Family Litigation Act of Korea and the draft of Family Litigation Act and contents of deliberation reflecting that. However, there is "the adjudgment system equivalent to agreement", which is a special family dispute resolution procedure that still exists in the family dispute resolution procedure of Japan but cannot be found in Korea. In Japan, it could be identified that the studies on Article 277 of Family Adjudgment Act have made progress to some degree naturally. Most of the study results can be summarized into three parts of "the adjudgment system equivalent to agreement" of Article 277 of Family Adjudgment Act of ① significance and procedure, ② the cases that are the subject of adjudgment, and ③ the introduction on related judicial precedents. Instead, also in Japan, there were few cases mentioning the contents of legislation history in detail, and most cases dealt with the superficial contents in relation to the interpretation of Article 277 of Family Adjudgment Act. "The adjudgment system equivalent to agreement" of Japan regulates that, in the mediation of Mediation Committee of cases on nullity or cancelation of marriage or adoption, which are the matters that may not be randomly disposed of by the party in Korea, when there is no dispute on the presence or absence of cause for nullity or cancelation because there is an agreement established between the parties, the Family Court may examine the needed matters and execute the pertinent "adjudgment equivalent to agreement" on the nullity or cancelation of marriage or adoption when it is acknowledged to be just by listening to the opinion of the mediation committee member composing the pertinent Mediation Committee. The system also regulates that this should also be applied to the cases on the nullity or cancelation of divorce by agreement or dissolution of adoption, recognition, nullity or cancelation of recognition, and decision of denial of paternity or presence or absence of status relationship. In addition, the system regulates that when the mediation of Mediation Committee is not established and it is acknowledged to be considerable, the adjudgment of divorce and dissolution of adoption and other adjudgment needed for the settlement of case within the range not violating the intention of request by both parties may be executed by listening to the opinions of mediation committee members composing the pertinent Mediation Committee and considering the circumstances, and in the adjudgment, the payment of money and other property payment may be ordered. In this connection, in Korea, the settlement by mediation is impossible on the matters that may not be randomly disposed of by the party(Article 59 Clause 2 Proviso of Family Litigation Act), and the judicial precedents rule that even if mediation is established on that matter, it has no validity. Currently, the Korean system of family dispute resolution procedure is very similar to that of Japan, and it is needed to actively review the "adjudgment system equivalent to agreement" of Article 277 of Family Adjudgment Act of Japan and to arrange a dispute resolution procedure respecting the intention (agreement) of parties for the characteristics of family dispute resolution. When it is viewed that for the characteristics of family disputes, a considerable number of disputes are settled by attaching importance to the opinions of parties, there are cases that may not be randomly disposed of by the parties. Hence, one cannot avoid the discussion on if even in those cases, the parties make an agreement and show a consensus, how the process of family dispute treatment should make progress.