민사소송법 제1조 제1항의 의미 - ʻ공정(公正)ʼ한 민사소송절차의 진행에 관하여 -

Abstract

In the Civil Procedure Law academia, Article 1 (1) of the Civil Procedure Act has been unanimously interpreted as declaring ‘four major ideals of civil procedure.’ The ideals of justice, fairness, speediness, inexpensiveness were already discussed as ‘the ideals of the civil litigation system’ in Japan in the 1930s, and the discussion in Japan has been accepted in Korea since before 1950. Article 1 (1) of the Civil Procedure Act literally imposes an obligation on the court to conduct procedures fairly, speedily and economically. Its origin is the Article 1 of the Old Civil Procedure Act of 1990 and Article 21 of the Old Rules of Civil Procedure, and the content of Article 3 of the Old Rules of Civil Procedure in Japan was similar to Article 21 of the Old Rules of Civil Procedure. Thus, Article 1 (1) of the Civil Procedure Act should not be regarded as a provision that stipulates the ideal of civil litigation system, but rather stipulates the values to be realized in civil procedure or the court's obligation to comply. Therefore, it is necessary to reconsider the conventional interpretation of Article 1 (1) of the Civil Procedure Act. The right to a fair trial is not only a constitutional right, but also stipulated in international norms, and Germany, Japan, and the United Kingdom, etc. have been developing legal principles regarding a fair trial. These may be referred to in interpreting Article 1 (1) of the Korean Civil Procedure Act. In a fair trial, the parties are recognizes as subjects of litigation by a neutral judge, and not merely equal opportunities are guaranteed, but substantive procedures are guaranteed by obtaining the claims and evidence that the parties are actually trying to present, submitting them to the court, and discussing them. Such an active litigation will reduce the time, cost, and effort invested by the court and the parties in the litigation and as a result, it will promote the process and can be linked to an efficient hearing. In the end, the fair, speedy and economical procedure stipulated in Article 1 (1) of the Civil Procedure Act means a substantial and efficient trial, which will ultimately guarantee the parties’ acceptance of the legitimacy of trial result.