조선시대의 민사소송 제도에 대한 현대적 평가

Abstract

The law of civil procedure prescribes the methods by which individuals may enforce their substantive laws by civil lawsuits. Korea introduced modern civil procedures, based on French and German models in Kobo Reform of 1894. Korea was the monarch, called Chosun Dynasty, from 1392 to 1910. Chosun adopted Confucianism as a state ideology. Confucianism was a body of philosophical and ethical-sociopolitical teachings. One of the teachings of Confucius was the proper rite(Ye, 禮), which means a moral norm. Confucians insisted that governments do not rely on penal punishment, but place more emphasis on a moral norm when they govern their people. According to Confucianism, Chosun tried to realize a moral and peaceful society. During Chosun dynasty, the inundation of civil lawsuits was very problematic because it hindered the achievement of a rational-moral society. Therefore, Chosun developed and adopted many kinds of judicial policy to cut back civil litigations expediently. For instances, it limited the period of time for bringing a civil case in court. According to the Statute of Gwahan, which is similar to a statute of limitation, the maximum time was 5 years. Chosun adopted Samdoddeuksin rule, which means a principle of a three-instance trial process. Under the rule, claims can be filed three time to a lower court and a higher court. If a party win two times in the lawsuit, he or she becomes a final winner. In addition, even though a party was summoned by a service by judge’s order, if a party does not appear on the date for oral arguments, the party loses the case. This was called Chinchak, which is similar to today’s constructive admission. In addition, Chosun adopted an adversary system and a principle of trial by evidence to secure the trial fairness and justice. As a result, the suit began with the parties presenting their claims, and the parties themselves was responsible for gathering and presenting evidence and arguments on behalf of their positions. Judge merely listened to both sides and then rendered a decision. Accordingly, judges played the relatively passive role of umpire. However, despite the effort of Chosun government, these procedural rules were not perfectly followed by judges and parties. In particularly, the Executive and the Judiciary was not separated, and judicial power was exercised by administrative officials, not legal experts. They sometimes abused their judicial power, and therefore parties did not often trust the judicial process. Therefore, during Chosun dynasty, courts have been inundated with civil lawsuits. However, it is remarkable that Chosun government adopted a statute of limitation, a three-instance trial process, an adversary system, and a principle of trial by evidence to handle civil cases fairly and expeditiously.