신모델하에서의 변론준비기일과 변론기일의 상관성 연구- 동질성 및 대체가능성을 중심으로 -

Abstract

In 2002 Korean Civil Procedure Code(hereinafter called KCPC) was deeply revised especially in the field of pretrial and trial process, so that pretrial process is strengthened to promote efficiency and speed of process. The KCPC and courts adapted 'Case management method(so called New Model)' and every cases are should be managed from the filing of the complaint with the court and in principle referred to pretrial process. Pretrial process in old KCPC is originally designed to prepare trial in order to simplify or formulate the issues in the case. But in the pretrial process under the New Model almost all of the evidences except examination of witnesses and parties are introduced and taken of evidence by presiding or commissioned judge(hereinafter called presiding judges). And the presiding judges have discretion to schedule a pretrial conference, which is normally held in chambers, of course, not with public hearing. But Korean Constitutional Law Sec. 109 provides principle of publicity and in KCPC Sec. 204 principle of immediacy is written. In effect pretrial conference resembles closely trial process functionally but it is operated against important principles of constitution and KCPC such as publicity and immediacy. It could provoke some problems in the process of pretrial and trial because of conflicts between function and operation of pretrial conference. In this article it is focused on how we can overcome this conflicts judicially and legislatively.