금융소비자보호법상의 금융분쟁조정절차에 관한 절차법적 측면의 고찰

• 영문명: A Study on the Mediation Process of Financial Consumer Protection Law in Korea at the Point of Procedural Aspects
• 발행기관: 한국민사소송법학회
• 저자명: 함영주(Young joo Ham)
• 간행물 정보: 『민사소송』제26권 제3호, 331~378쪽, 전체 48쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2022.10.31

영문 초록

Whether to emphasize the principle of private autonomy in the procedural aspect in mediation or the number and outcomes of case resolution through mediation is a matter of individual values and philosophy of each country or individual. In the former case, emphasis is placed on the provision of a fundamental resolution to a dispute such as satisfaction of the parties with the procedure or a genuine agreement between the parties, and in the latter case, the focus is on the cost-effectiveness of the mediator’s work. The former represents mediation based on the Singapore Mediation Convention(United Nations Convention on International Settlement Agreements resulting from Mediation), the latter represents the UK's Ombudsmen service. In general, emphasizing party-leading civil procedure countries are place importance on the parties' right to form the procedure itself or take the party’s initiative in mediation proceedings. On the other hand, court-leading civil procedure countries which are strengthening the authority of the courts taking the position that mediator must be a lawyer, or at least a person with a lawyer's qualifications. They thought mediation is fundamentally the same system like civil litigation. Unfortunately, the latter point of view could only be used as specifying mediation system of the country, but it is contradictory to the origin of ADR(Alternativie Dispute Resolution) system or mediation system. It goes without saying that it also contradictory to the standards for mediation of the Singapore Mediation Convention. This my view does not mean that there is no need for a dispute resolution method which emphasizes the number and outcome of case resolution. I am fully understand the reason why the performance-oriented dispute resolution method was activated in Korea. Therefore, I propose to establish a separate performance-oriented dispute resolution system from the party-leading mediation process. In that case, the dispute resolution procedure can play its own independent role as another form of alternative dispute resolution. In the case of the financial sector, between the roles of the Financial Supervisory Service and the Financial Dispute Mediation Committee’s work must be distinguished, and the Financial Dispute Mediation Committee needs to be operated as an independent institution. The goals of the Financial Supervisory Service should be different from the goals of the Financial Dispute Mediation Committee. While the Financial Supervisory Service should play the role of a representative financial regulatory body, the Financial Dispute Mediation Committee is not a tool to increase the regulatory effect of the Financial Supervisory Service, but rather stands impartiality between financial consumers and financial institutions to resolve financial disputes fairly. Korea's financial dispute mediation, which gave the same effect as a final judgment effect to the decision of the Committee, without guaranteeing the independence of the Financial Dispute Mediation Committee, could be problomatic in Dispure Resolution System. This ends to blocking the path to judicial review of court. In case both parties do not object within two weeks of the financial mediation committee’s decision which regards as consent of both and only on party’s consent(usually finantial consumer’s consent) regards as bilateral consent (acceptance) is not fit for Korea civil procedure system. The Korea civil Procedure Act grants Res Judicata effect to settlement and the effect also recognized in mediation of the Financial Dispute Mediation Committee’s decision. It is also not appropriate to translate the UK Financial Ombudsmen Service as a mediation. There is also a big problem in combining the UK financial ombudsmen service that recognizes unilateral consent within a very limited scope. UK Ombudsmen service is a unique system which is different from the existing worldwide ADR or mediation.

목차

Ⅰ. 조정절차의 개념에 대한 검토

Ⅱ. 금융소비자보호법상의 조정에 대한 절차법적 관점에서의 검토

Ⅲ. 싱가포르 협약을 기준으로 본 우리나라 법원조정 및 금융소비자보호법상 조정절차의 체계 정합성 검토

Ⅳ. 금융분쟁 해결 방안으로서의 영국의 옴부즈맨 서비스에 대한 검토

Ⅴ. 절차 주재자 실적 중시 관점의 금융분쟁조정제도의 문제점에 대한 검토

Ⅵ. 맺음말

키워드

조정 조정절차에 의하기로 하는 합의 부판사 화해 담당 판사 협박 개별회합 개별면담 개별회의 금융소비자옴부즈맨 심판인 행정형 조정 mediation agreement to mediate magistrate Güterrichter coersion private session caucus FOS Financial Ombudsmen adjudicator