한국 민사소송에서 법관의 석명권 행사범위 확장의 원인과 그 문제점

Abstract

The clarification power of judges to promote clarifying factual and legal disputes between parties and to give parties hints and feedback to overlooked legal perspectives influence issues and outcome of civil trial though it is so called passive exercise toward inconsistent arguments and evidences. Contrasting passive approaches of courts before 2000s, the scope of judges' clarification power exercise has expanded to reach out broad engagement including suggesting alternative perspective based on factual issues since 2000s when looking through Supreme Court's opinions which stipulate the obligation of judges's clarification inquiry. Scholars view this alteration from substantial equalities of parties or social welfare state perspectives, but enlargement of judges' inquisitorial power explains it well than other theory when you analyze the precedents. This enlargement of judges' inquisitorial power and role is originated from the introduction and adaptation of case management model -so called "New Model"- which requires intervention of judges and active exercise of clarification power since 2000s. This expansion of judges' clarification power exercise has negative side effects of intimidating judge's impartiality and triggering deterioration of attorney's ability which is backbone of civil trial. Among other things, the control of abuse of judges' clarification power exercise is almost impossible. Thus, regulation to the expansion of judges' clarification power exercise is urgent, but the regulation is hard to get considering the reason behind the expansion.