“싱가포르협약의 이행”에 관한 한국의 준비 상황과 향후의 과제

• 영문명: Korea’s Preparations and Mediation Improvement Drafts for “Implementation of the Singapore Convention”
• 발행기관: 한국민사소송법학회
• 저자명: 함영주(Young joo Ham)
• 간행물 정보: 『민사소송』제28권 제2호, 381~430쪽, 전체 50쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2024.06.30

국문 초록

A procedure is a kind of system, so the entire procedure must be organically connected to produce desired results. This is the same as tap water to come out to an apartment faucet, the faucet plugged into the wall is not enough, but a whole irrigation system needed that draws water from the water resources and moves it to the apartment faucet. The mediation process goes beyond simply introducing new procedures to present dispute resolution procedures. In the mediation process, there is a shift from terminating disputes through adjudication into autonomous dispute resolution, and from a referee such as an arbitrator or judge into the role of peace maker (mediator or neutrals). For this reason, the mediation procedure is fundamentally different from the present adjudication procedure like litigation or arbitration. At the same time, the mediation procedure has the aspect of a system that practicing democracy in that it restores or respects the autonomy of the parties as much as possible. This is because, rather than being given as a favor from the top down, the mediation process is a process in which the parties recover their dispute resolution capabilities with the help of a mediator (neutrals). For this reason, promoting mediation as if it were a new procedure while operating it with the same procedures as the adjudication procedure could further slow down the development of the procedure or mislead the process. This is because a procedure can be considered a separate procedure and develops into a procedure with its own advantages only when the essential characteristics of the procedure are maintained. The reason why arbitration is losing its freshness unlike in the early days may be because it is becoming more and more similar to litigation procedures. As arbitration loses its original flexibility, autonomy and becomes more similar to litigation procedures, it will inevitably fall behind with litigation operated by the government. The more similar the mediation procedure is to litigation or arbitration, the more likely it could follow the same path of arbitration which stagnation. In this respect, the stagnation in the development of arbitration procedures gives a clue to implications for the future of mediation procedures. Therefore, it is necessary for us to make efforts to improve the mediation system, which was born as a system to cope with frequent disputes that across the the boundaries of nation, and make the mediation into a new procedure that clearly distinguishes from litigation and/or arbitration. This is one of the ways to create a dispute resolution procedure that is suitable for this era where individuals around the world trade and interact more actively than ever before using the Internet and artificial intelligence. Accordingly, in this paper, I proposed the deletion of Articles 220 and 461 of the Korean Civil Procedure Act which recognize res judicata in the settlement record, the Singapore Convention Implementation Act (draft), the Framework Act on Mediation Procedures (draft), the Guidelines for Model Conduct for Mediators. (draft), and mediator training plan and detailed training content (draft).

목차

Ⅰ. 한국과 일본의 조정 관련 법규의 상호(相互) 연동성(聯動性)

Ⅱ. 싱가포르협약의 배경과 목적

Ⅲ. 싱가포르협약에 대한 한국의 준비상황

Ⅳ. “재판·중재”와 “조정·협상”의 절차적 특성 차이를 고려한 싱가포르 협약에 대한 대응과 한국의 과제

Ⅴ. 한국 조정제도의 개선 방안에 대한 의견

Ⅵ. 맺음말

키워드

조정 싱가포르협약 온라인 분쟁해결절차 조정상화해 개별면담 협상 mediation Singapore Mediation Convention ODR settlement agreement resulting from mediation caucus private session negotiation