민사소송절차에서의 신의칙의 적용

Abstract

In general, the words 'good faith' and 'fair dealing' imply, respectively, 'trust on other party's fair dealing' and 'faithful preparation for the fulfillment of a duty'. The duty of good faith and fair dealing doctrine establishes that a party to a legal matter should claim his rights and fulfill his duties in consideration of the other party's interests. In a modern society, the duty of good faith and fair dealing doctrine applies to not only contract law issues but also property law issues, family law issues, public law issues and procedural law issues, and it has become a binding rule. In particular, when the duty of good faith and fair dealing doctrine applies to procedural law issues (e.g., civil procedure issues), the outcomes will be much different than when applied to substantive law issues (e.g., civil law issues) in many ways. This is because the application of the doctrine in civil procedure is closed related to the party's duty of candor, the party's perfect duty and the duty of the court to expedite court proceedings. It should be noted that the implication and function of the duty of good faith and fair dealing doctrine in civil procedure are different from those of substantive laws due to the fact that civil procedure focuses on establishing detailed procedures which materialize the objectives of civil procedure, not establishing binding rules on the creation and modification of rights and duties.