민사조정법에 있어서 조정위원의 공정성 확보 - 제척, 기피, 회피제도를 중심으로 -

Abstract

Although the civil litigation system is provided in our judicial system as a traditional method of resolving civil disputes, as the number of civil dispute cases continues to increase and civil dispute cases are qualitatively diversified, the civil litigation system has already reached its limit in handling all types of civil disputes submitted to the courts a long time ago, and interest in and studies on dispute resolution methods other than the existing civil litigation procedures have been constantly in progress. As a representative alternative dispute resolution system, there is the mediation system. In South Korea, the mediation system is led and operated by the courts, centering on the Judicial Mediation of Civil Disputes Act. In order for the judicial mediation procedure progressed in the court to play a role as a dispute resolution procedure, fairness must be guaranteed as with the civil litigation procedure, and the Civil Procedure Code provides the exclusion, challenge, and avoidance systems (Articles 41~50 of the Civil Procedure Code) to guarantee the fairness as such. However, in the Judicial Mediation of Civil Disputes Act, which stipulates the same dispute resolution procedure for civil cases, the exclusion, challenge, and evasion systems for Mediators are not explicitly stipulated, and the fairness of Mediators is guaranteed with Supreme Court rules (Mediator rules). Considering that the number of judicial mediation cases is steadily increasing, and judicial mediation procedure is a dispute resolution procedure for civil cases as with civil litigations, it is thought that a system is necessary to guarantee the fairness of Mediators under the Judicial Mediation of Civil Disputes Act. In addition, other than the mediation procedure progressed in the court under the Judicial Mediation of Civil Disputes Act, in the case of mediations commissioned by the court that are progressed in public or private organizations outside the court, regulations on the exclusion, evasion, and evasion of Mediators have been established and are being implemented. Therefore, in this study, measures to ensure the fairness of Mediators were examined focusing on the Judicial Mediation of Civil Disputes Act, which can be said to be a general law of judicial mediation procedures.