이행권고결정제도에 관한 소고

• 영문명: A Review on the Decision on Performance Recommendation System
• 발행기관: 전남대학교 법학연구소
• 저자명: 이철환(Lee, Cheol-Whan)
• 간행물 정보: 『법학논총』제27권 제1호, 343~376쪽, 전체 34쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.06.30

영문 초록

‘Small Claims’ are those actions where the relief sought is less than 20 million won, and they constitute an absolute majority of all civil actions － some 80% of cases. This means that many citizens utilize the system of small claims for their civil disputes. The small claims system is a convenient and speedy system for the citizens, because most cases are concluded within 2-3months from the filing of the initial pleadings. Therefore, although the amount at stake is relatively low, small claims cases occupy an important part in the court system. The Decision on Performance Recommendation System (the “DPRS”) has been operated since January 29, 2001 with the legislative purposes of simplifying the process and reducing the inconvenience of court appearance for the parties. The DPRS is an judicial decision to recommend the performance of an obligation to the defendant after the filing of a small claims action. The defendant is served with the decision with a copy of the complaint. This is a procedure to be exhausted before the formal trial process takes place. The essence of this system is as follows. After the filing of a small claims complaint, the court reviews the pleading, and when it is deemed proper, before it set up a trial date, the court issues a decision recommending the performance of the defendant’s obligations,. If the defendant does not promptly object to this decision, a decree of enforcement is granted to the plaintiff. It has been more than full six years since the DPRS was implemented. This procedure became an important element in small claims adjudication, proved by the fact that more than 30% of all small claims cases are being resolved through the DPRS. This article reviews the contents and the current state of the DPRS that has been a success and considers the problems in the contents and in the implementation of the system. The significance of the DPRS is that it provides a speedy resolution of the cases with no real disputes, enables the court to review more thoroughly those cases with real disputes by reducing the case load of the court. In order to further the policy behind the DPRS, it is desirable that, unless it is clearly not appropriate to do so, the court should liberally invoke the DPRS whenever possible. Cases with no real disputes should be disposed in a simpler way, and cases with disputes should be reviewed more fully through substantial investigation of evidence. Legislative supplementation is needed to further enhance the utility of the DPRS. First, note the following problem: after a certified copy of the decision to recommend performance is served upon the defendant, the decision is confirmed even when the court sets forth a trial date due to the plaintiff’s amendment of the complaint in the meantime. In such cases, there is an issue of priority between the confirmed decision to recommend and the actual decision from the trial. This issue shall be resolved legislatively. An example of such legislative solutions would be to propose an Act to stay the confirmation periodfor the cases where trial dates are set before the confirmation of the decision to recommend, as a legal effect of the trial date set up. In addition, there needsto be a reasonable adjustment of the scope of the small claims. It is desirable to limit the scope to the case with less than 10 million won at stake, in light of the reality that 66.6% of all small claims cases have less than 10 million won at stake, the right to trial by the Supreme Court, and the policy of protecting citizens’ property rights. Moreover, we need to reduce the work load of the courts by opening the task of issuingthe recommendation decisions to judicial officers, thereby enabling the courts to focus on the cases with real disputes. We also need to offer opportunities to become judicial officers to lawyers, rather than limiting such opportunities to the court personnel. This will enhance the quality of judicial officers.

목차

Ⅰ. 소액사건현황과 이행권고결정제도의 도입

Ⅱ. 이행권고결정제도의 운영

Ⅲ. 이행권고결정에 대한 이의

Ⅳ. 이행권고결정의 효력

Ⅴ. 이행권고결정의 제도적 개선방안

Ⅵ. 맺는 말

키워드

이행권고결정 소액사건 소액사건심판법 사법보좌관 Decision to Recommend Performance Small Claims The Act on Small Claims Adjudication Judicial Officers