대법원 입법의견(상고심사제 및 대법관 증원안)에 대한 비판적 분석과 효과적인 상고제도 개선안 모색

• 영문명: An Analysis of the Supreme Court's Legislative Opinion (Appellate Review System and Increasing Justices) and the Search for Effective Improvements to the Appellate System
• 발행기관: 한국민사소송법학회
• 저자명: 이재운(Jae-Woon Lee)
• 간행물 정보: 『민사소송』제28권 제3호, 189~252쪽, 전체 64쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2024.10.31

국문 초록

In response to the continuously increasing number of appellate cases, the Supreme Court proposed a legislative opinion to abolish the current Discontinuance of Trial system and implement an Appellate Review system, while gradually increasing the number of Justices by four over a six-year period. However, compared to the previous Appellate Permission system or the current Discontinuance of Trial system, there are doubts about whether the proposed Appellate Review system can effectively achieve its intended goal of reducing the workload of the Supreme Court. Moreover, the name of the proposed system could evoke memories of the Appellate Permission system which had long hindered access to the Supreme Court, potentially sparking public opposition. Therefore, this may not be the most appropriate approach to reforming the appellate system. Rather, the current Discontinuance of Trial system, which has been in place for over 30 years and is often referred to as a Modified Appellate Permission system, has strengths in terms of stability. By imposing further restrictions on the conditions for hearing appeals when necessary, it may be possible to achieve results similar to those intended by the Appellate Review system. That said, improvements to the Discontinuance of Trial system are still necessary. These include providing more concrete reasons for dismissals and ensuring that Justices have enough time to review the case records. To achieve this, the Supreme Court’s capacity must be expanded. A more suitable approach would be to improve the current Discontinuance of Trial system, increase the number of Justices, and also appoint judges who are not Justices to create a dual system within the Supreme Court. This would best meet the public’s expectations while maximizing the efficiency of case handling. The Dual-Structure proposal is based on attorney Hong-gi Min’s suggestion, which divides the Supreme Court into two Panel: one for the Justices Panel and one for the Dual Composition Panel. The Dual Composition Panel would initially handle all appellate cases, while cases with divided opinions would be reviewed again by the Justices Panel, allowing them to select cases for referral to the full bench. In this system, significant cases that exceed a certain threshold, such as those involving significant monetary amounts, would bypass the Dual Composition Panel and go directly to the Justices Panel. This could reduce the Dual Composition Panel's excessive workload, avoid prolonged hearings, and ensure that important cases needing full bench discussion are not overlooked in the Dual Composition Panel stage. However, these measures may be the best way to address the increasing number of appellate cases at the present time, but it is worth reconsidering whether they align with the ultimate direction in which the appellate system should take. If appellate cases continue to increase in the future, there will be limits to how many Justices or other judges can be added. Moreover, as the highest court, the Supreme Court fulfills both the role of providing legal redress and acting as a policy-making court. The latter is a function that no other institution can replace, and through this role, the Supreme Court has the responsibility to create a new legal order that leads the times. To achieve this, as is widely known, the trial process at the fact-finding stage must be thorough, encouraging the parties to accept the outcome, even in cases of defeat, and thus reducing the need for appeals. and the Discontinuance of Trial rate must be dramatically increased, minimizing the number of cases that proceed to substantive review. For those cases that do reach substantive review, all Justices should participate in full bench hearings, ensuring sufficient research, in-depth discussions, and careful consideration of each issue before reaching a conclusion.

목차

Ⅰ. 서론

Ⅱ. 상소(上訴)와 상고(上告)

Ⅲ. 역대 상고제도의 변천 및 개별 개선안 분석

Ⅳ. 최근 논의된 상고심사제안_대법원 입법의견에 대한 분석과 평가

Ⅴ. 효과적인 상고제도 개선안의 모색_심리불속행제도의 개선과 병행하여

Ⅵ. 결론

키워드

심리불속행제도 상고심사제 상고허가제 고등법원 상고부 이원적 구성 상고법원 고등법원 상고심사부 Discontinuance of Trial system Appellate Review system Appellate Permission system Appellate Division of the High Court Dual-Structure proposal Appellate Court Appellate Review Division of the High Court