조정에 적합한 분쟁유형에 대한 연구 - 가사사건을 중심으로-

Abstract

Even though the introduction and discussion of ADR called “ADR(Alternative Dispute Resolution)” have been made since a long time ago, its enthusiasm never dies and this situation is interconnected with the historical fact that resolutions without a suit have been in all ages and countries and regret on the current traditional litigation system, and for now the court, administrative institutions and academic community are paying lots of attention to ADR. A representative dispute resolution to ADR can be considered to “mediation” and mediation is the most frequently system out of ADR, and is legally and systematically supported. But, compared to foreign countries, we have not many cases whose disputes are resolved by conciliation procedures. In this connection, there must be diverse reasons like the opinion of preferring a drastic judicial system but at least, the case type that resolves disputes through the mediation system positively operated by the court can be called the area of family dispute. There is Family Litigation Act as one of representative laws that stereotype and classifies mediation possible cases, and procedures such as conciliation-prepositive principle are prepared to revitalize mediation by systematically classifying mediation possible cases. In case of the “B Type” and “E type” cases defined as the types of the domestic cases to which are mediation can be applied in Family Litigation Act, because they collide with other regulations of Family Litigation Act or the authority to dispose of people involved in the case is not accepted by the characteristics of domestic cases, they are defined as mediation possible domestic cases by Family Litigation Act due to the attitude of precedents that does not allow mediation between people involved, but in fact, domestic cases that cannot be mediated at all by people involved in disputes are regulated. This is a little different from Japan in comparison and in light of the contents of the “Revised Bill of Family Litigation Act” of the Supreme Court, it was confirmed that the classification system about the mediation possible domestic cases by the current Family Litigation Act has problems. Consequently, it is necessary that people involved in disputes classify mediation possible and impossible types for themselves to resolve domestic cases independently and autonomously, and a systematic support is made through rearrangement of Family Litigation Act.