調停調書의 旣判力 制限에 관한 小考

• 영문명: A restrict of res judicata(claim preclusion) of mediation
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 주인(In Joo)
• 간행물 정보: 『비교사법』비교사법 제11권 1호, 335~360쪽, 전체 26쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.03.01

영문 초록

Mediation is one of the most effective ADR(alternative dispute resolution), which takes the place of civil procedure. It is achieved with disputants' independent will. The disputants negotiate each other, and make peaceful settlement. If a compromise is effected between the two, mediation has the full force and effect of a civil judgement of the Supreme Court in accordance with Korean Civil Mediation Law(Article 29). So the disputants cannot bring the case before the court again, even though there were serious defects in that mediation. This effect on the mediation is afford a basis for the private autonomies. But nowadays, the practical use of the private autonomies is not thoroughgoing enough in our country. It is a matter of no uncommon occurrence for the member of a mediation commission to form a conclusion about the dispute and to persuade the disputants to accept the conclusion. Even the judges have a tendency to conduct a mediation like civil procedure. Under these circumstances, it's harsh to the disputants that a compromise in the mediation has an effect like the judgement of the Supreme Court. It constitutes an infringement of the rule of private autonomies and of the constitutional law. So it is required that a restriction of claim preclusion of mediation. And we should reconsider carefully the role or service of a mediation commission. The role of a mediation commission must be to guarantee an atmosphere of freedom, and for disputants to negotiate without restraint. So the members of a mediation commission should make an offer the disputants the information on the members and proceedings of the mediation. It will make the disputants have a firm belief that the members are fair and mediation will be progressed in a fair. Moreover they have to notify the disputants of the estimated norms which is concerned in the dispute, too. It will facilitate the negotiation and compromise, and will justify claim preclusion(res udicata) which is based on Korean Civil mediation Law(Article 29).

목차

Ⅰ. 머리말

Ⅱ. 확정판결과 동일시되는 조서의 효력

Ⅲ. 조정조서의 기판력제한과 관련한 해석론

Ⅳ. 조정조서의 기판력제한과 관련한 입법론

Ⅴ. 맺음말

참고문헌

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