「民刑訴訟規則」에 의한 민사재판의 운영과 의의

Abstract

The purpose of this study is to trace the practice and the historical meaning of 「Law of Civil and Criminal Procedure(民刑訴訟規則)」. I investigated how the civil trial was operated and what was the meaning of this trial by analyzing the legal principles of civil judgment of the Supreme Court in the Colonial Korea(朝鮮高等法院), applying the provision of the 「Law of Civil and Criminal Procedure(民刑訴訟規則)」, which was legislated in 1098. The traditional era civil proceeding law and the modern civil proceeding law have entirely different legislation. The modern civil proceeding law started after it was legislated when it broke away from the traditional legislation. In other words, it can be assumed that the origin of the modern Korean Civil Procedure Act is the legislation of the 「Law of Civil and Criminal Procedure(民刑訴訟規則)」. Most of systems necessary for modern civil proceeding have been introduced by this law. For example, this law regulated the qualification and determination of the party, prepared legal basis of litigation participation system, and regulated the representation of lawsuit. Moreover, the principle of prohibition against double jeopardy was recognized by this law, and the prohibition of filing of duplicated suit and the concept of ‘Res judicata(旣判力)’ were established. Above all, compulsory executory power of the party was secured by this law, and the lawsuit of the third partys' objection was also recognized. Although this law was legislated by using Japanese Meiji Civil Proceedings Act(明治 民事訴訟法) as the parent law, it was established differently from the Japanese law in consideration of the unique circumstances of Joseon. For example, there are differences in the initial date in reckoning of the period for an appeal, conveyance of copy of the judgment and attraction system of the civil debtor. In addition, this law was charaterized by reversing and rendering judgment for the lawsuit because there was no concept of remand after quashing in this law. However, there were some limitations in this law, for example, verbot der reformato in peius(不利益變更禁止原則) was not recognized. In conclusion, the modern Civil Proceedings Act was introduced by the legislation of this law, and it can be presumed that the civil trial securing ‘Res judicata(旣判力)’ and ‘Enforceability(强制執行力)’ has begun under this law.