소송구조제도에 대한 헌법적 고찰 - 민사에 있어 평등한 사법접근권 실현을 위한 소송구조제도의 재고(再考) -

Abstract

‘Rule of law’ is the basic principle constitutions of most of modern countries share. In a country dominated by law, all sorts of problems related to human lives are regulated by law and especially dispute resolution holds judical relief in principle. Consequently, ‘Equal access to justice for all’ is a very important constitutional ideal as an indispensible precondition in realizing the basic principle called rule of law. The recent highlighted topic, ‘Access to Justice’ needs to be discussed constitutionally in that sense. Access to justice as human rights is expression of constitutional ideal called 'Equal access to justice' as the form of rights. ‘Access to Justice’ is a basic human right and inseparable from the ‘Right of Access to Courts,’ but different from it and has a unique meaning as an independent right. This paper considers the litigation aid set by the Civil Procedure Code constitutionally centering on the above access to justice as human rights. The Constitutional Court has reviewed the violation of the provisions in the Civil Procedure Code on litigation aid several times, but could not identify the constitutional problems of the litigation aid enough because they understood the litigation aid centering on the Right of Access to Courts only. People enjoy Access to Justice as constitutional right, regardless of civil affairs procedure or criminal procedure. It is so natural in ‘Access to Justice’ that a poor party to a civil suit should be given ‘right to receive litigation aid.’ Nevertheless, the present litigation aid thought about the realistic constraints only including budget burden for litigation aid and neglected the top priority of assurance on right to receive litigation aid, going further, assurance on ‘Access to Justice’. In this regard, there are things to be criticized constitutionally in the present litigation aid and its practices.