중재제도의 활성화를 위한 연구

Abstract

It is true that alternative dispute resolution system is the only substitute for court lawsuit cases, being the means of social order maintenance and conflict resolution. Within the system, the arbitration system is capable of operating other alternative dispute systems in an integrated way. To revitalize such arbitration system some tasks are to be suggested here after reviewing results from the experience of establishing and running the Korean Arbitration Board, the first in the country that focused on judicial disputes, from a clinical perspective. We cannot help but to admit that we are under developed when it comes to arbitration system. Even Japan, who were in a similar position as Korea,established the so called "ADR law" in 2004 and have surpassed our level by more than 5 years. Many countries from all over the world are already actively utilizing the arbitration system in a level that we cannot comprehend. It is only natural for these nations since they have the common trait of having tens and hundreds of arbitration institutes. On the other hand,there are around 5 arbitration institutes in Korea, including administrative ones. Revitalization of arbitration system in Korea seem like it has a long way to go. But since it is inappropriate to establish an arbitration system for profit or in a foundation form its establishment should be actively encouraged and supported through government funding or education and promotion in relation to educational and training centers. Korean arbitration law requires judgment of execution not only for international arbitration but also for domestic ones, resulting in economic pressure for each case. This leads to financial burden on the parties of interest, leading to avoidance of arbitration. Therefore, apart from arbitration judgments that are international, domestic arbitration judgments should be able to attain word of administration immediately. Also, application of arbitration should be recognized of its effect of extinctive prescription suspension. The court must recognize that alternative dispute resolution system does not exploit court authorities but is a necessity that will reduce prosecution's task and pressure. Support and cooperation from the court, government and lawyers will greatly contribute to the revitalization of the arbitration system and a better, more appropriate arbitration judgments can be expected through the acquiring of better arbitrators that we will be able to recruit with the financial support. Thus the awareness of court cases and arbitration judgments being not too far from each other will lead to utilization of arbitration system. Considering the characteristics of arbitration it requires more autonomy and flexibility than lawsuits, making it necessary not to have any hinderance during in which parties decide the arbitration process, select the arbitrator and fact finding method, allocate cost , and decide the arbitration location and governing law. This will result in a cheaper, quicker, more secretive resolution of dispute than the court lawsuit as well as giving the effect of being more descriptive of one's problems with a less authoritative,trustworthy arbitrator. The feeling of attaining judgment that is not too different from that of the court will reduce social conflict and the arbitration system will be revitalized.