민사소송에서의 집중적 구술심리주의 실현 방안

Abstract

The court realizes the necessity of massive reform of the civil proceedings and implemented the New Civil Procedure Law, which was completely revised in 2002, to lay the foundations. The revised law allowed the concentrated proceeding system to be implemented as a new proceeding method that revives the oral proceedings, directness, and the principle of concentration and preparation of argument. In order to achieve prompt and appropriate trial through actualization and vitalization of oral argument, it is necessary to prepare contents of argument in advance, which will be presented on the day of oral argument. It is historically proven that the perfect implementation of the adversary system, which revives the subjectivity of the party and gives the initiative of the proceedings, rather stand in the way in preparation for effective oral argument. Recently, the reform of the civil proceedings in other countries has been focused on strengthening the exercise of the power of the court, while restricting the party's careless legal actions. It can be said that the success or failure of concentrated proceeding system depends on early detection and confirmation of “core issues” that are subject to proceeding through such exercise of authority. In short, the confirmation of major issues requires an active role of judges. Unlike conventional “paper” lawsuits, electronic lawsuits and related electronic courts have the conditions to fully realize the directness and the principle of the oral proceedings. In the electronic lawsuit, the judge can read the preparation documents immediately without going through the clerk, thus a supplementary order can be issued immediately once a written response and the preparation document that have no substantive contents are submitted. In the electronic litigation, litigant parties and legal representatives are allowed to access the system from time to time. By using such advantages, submission of all materials should be allowed without restriction before the first hearing date, and after then, only materials related to the confirmed issues should be submitted. In order to faithfully follow the method in which proceedings on the oral hearing date concentrate on the major issues and facts determined through the preparation of the defense in advance, it is necessary to revise the precedent that still maintains the old subject matter of a lawsuit theory. The old subject matter of a lawsuit theory regards an ideal fact of the requirements of the provisions of the individual actual acts as the object of proceedings. If the new civil proceedings are aimed at establishing a system that meets the needs of the general public, who is a judicial service user, it should be liberated from the dogma of the sophisticated and difficult old subject matter of a lawsuit theory. When the court initiates trials for efficient issue settlement, the efforts should be made to arrange the disclosed contents to be easily understood by parties and, if necessary, persuade the parties by providing evidence on relevant evidence, experience rules, and legal interpretations. In addition to the active role of the court, attorneys representing the case or the parties themselves should actively respond to the initiation of a reasonable trial of the court by raising awareness of the public role of the case.