Adversary System과 변론주의에 관한 소고

Abstract

This thesis is a comparative legal analysis of the Anglo-American adversarial system and the continental legal system of pleading(the principle of Party-Presentation, Verhandlungsmaxime). The adversarial system in the United States is a fact-finding hearing structure in which the adversarial party leads the proceedings, and is historically opposed to the Inquisitorial System of continental law. On the other hand, the principle of Party-Presentation in the continental legal system is a system that stands in opposition to ex officio investigation (Untersuchungsmaxime), and it is a fact-finding hearing structure in which the parties and the court share the role in shaping the content and conducting the proceedings. Currently, the adversarial system in the United States and the principle of Party-Presentation in the continental legal system are gradually strengthening their ex officio tendencies, so they are approaching each other. However, I believe that there is still an essential difference between the two as they are different systems. However, the principle of Party-Presentation is also similar to the Adversary System in that it is a fact-finding hearing structure led by the parties in terms of shaping the content of the proceedings. Therefore, in order to solve the problem of difficulties in proving evidence under the principle of Party-Presentation in Korea, we tried to explore ways to expand the means of evidence collection in Korea by reviewing the adversary system and the Discovery System that supports it, as well as the systems for expanding evidence collection in Germany and Japan, which are continental legal systems. As a corrective and complementary measure to the principle of Party-Presentation, it is necessary to carefully consider the exercise of the right to be heard and the review of the duty to be heard, as well as the introduction of evidence collection methods such as a limited scope Discovery System suitable for the fact-finding hearing structure of civil litigation in Korea and the reality of litigation, but for now, I think it is better to start by introducing a fact-finding hearing structure like the German independent pretrial investigation system and the Japanese party inquiry system. In addition, by mirroring the past mistakes related to the plea preparation process and the intensive hearing method, it is necessary to improve the plea preparation process so that the plea system and the intensive hearing method can fully exercise their functions, and to realize the introduction of the mandatory lawyer representation system and the public defender system to support the plea system. I also think that even if a good system is established, it is necessary to develop a flexible and resilient way of operating the system so that it does not become an overwhelming burden on the court and the parties (or lawyers representing them) and the system does not become disfunctional.