변론준비제도의 연혁 및 외국 입법례 연구

• 발행기관: 한국민사소송법학회
• 저자명: 정영수
• 간행물 정보: 『민사소송』제10권 제1호, 36~76쪽, 전체 41쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.05.30

영문 초록

The Preparatory System for Trial in civil litigation is a system for arrangement of assertions and evidence for preparation of trial in a civil lawsuit. This system is composed of (i) proceedings for sorting out genuine issues after a court has both parties engaged in arranging assertions and evidence and (ii) proceedings for collecting evidence. In order to make civil procedure more efficient, each nation has spent their considerable effort and time on studying the preparatory system for trial. Amendments to Civil Procedure Act of 2002, in particular, focused on its im-provement and refinement, thereby placing more emphasis on the judiciary s ac-tive role. A court sets the date of preparation for trial, if necessary, after putting dis-puted issues into shape through exchange of written documents. The presiding judge generally examines complaint, written answer, and briefs in the date. Also, the presiding judge exercises the right to request elucidation and tries to compre-hend the disputed issues. In addition, the court can recommend both parties to settle the case. The court can examine proof to the extent to which it deems necessary. If the preparation date for the trial is terminated, the court designates the date of trial, thereby examining proof intensively. As a principle, new assertions cannot be submitted if its preparation date has been over. It means that both parties had to submit all assertions and proof in its preparation step. However, the Preparatory System for Trial has not been effective so far after the implementation of the Korean Civil Procedure Act revised in 2002. In Korea, preparation for civil litigation necessarily involves the collection and examination of evidence and data. Modeled after German civil procedure rules, most evidence production in Korea takes place at trial. Authority and control over the gathering of eviden-tiary facts is vested in the court, with the judge assuming the primary responsi-bility for taking and receiving evidence. Korean attorneys have no real power to compel the production of evidence or to elicit testimony from either adverse parties or third parties, and must therefore rely on voluntary cooperation or seek intervention by the court. This is in stark contrast to U.S. discovery, which is conducted mostly by the parties themselves with only minimal court supervision. Frustration and chronic delay in Germany and in Japanese resulted in increas-ing calls in Germany and in Japan for reformation of the Code of Civil Procedure, particularly relating to provisions for the collection of evidence. The German Code of Civil Procedure has “selbständiges Beweisverfahren”. The Japanese Code of Civil Procedure has several means commonly employed by Japanese attorneys for collecting evidence. In 2003 year, additional reformation of evidence collecting methods in Japan continued. The needs of further expanding methods of evidence collection will likely be felt in Korea.

목차

Ⅰ. 序論

Ⅱ. 辯論準備制度의 沿革

Ⅲ. 書面에 의한 辯論準備制度

Ⅳ. 期日에 의한 辯論準備制度

Ⅴ. 辯論準備制度의 效果

Ⅵ. 辯論準備의 충실을 위한 證據蒐集節次

Ⅶ. 結論

참고문헌

키워드

준비서면 변론준비기일 쟁점정리절차 증거개시 증거수집절차 brief date of preparation for tral preparatory system for trial discovery procedures of evi-dence collecion