민사 항소심 제도의 개선 방안

Under the Civil Procedure Act of South Korea, the appellate court is allowed to consider a wide range of new arguments and defenses from the parties and examine evidences on the merits. This is referred to as “continuance of first instance trial”, which brought various problems of diluting the trial court proceedings and ultimately imposed a burden on the appeals proceedings, delaying remedies and completion of proceedings. The courts' generosity toward appeal litigants in South Korea by giving them a second chance in pleading the merits during the appellate stage, which is referred to as “the right to renew the hearing”, is likely to run contrary to the worldwide legislative trend where pleadings are concentrated on the trial court. Furthermore, it causes an imbalance between the civil and criminal appeals proceedings. To address the problems mentioned above, we should put a reasonable limit on the issues for the appellate review and the submission of the underlying litigation materials for the appeals proceedings, making trial proceeding be the main stage for the fact-finding. In addition, we should limit the appellate review to the question as to whether the trial court made errors in the judgment of law or made substantial errors in fact-findings in its decision. The need for this change in the system is not solely for the purpose of reducing the number of appeals cases and thereby serving the convenience of the courts. Rather it is focused on bringing an effective system where limited judicial resources are properly distributed and where fact findings and resolving disputes through out the court proceedings are reasonably reorganized. However, an immediate adoption of the principle of “closed record” where appellants is not allowed to introduce new claims or evidence not raised in the first instance, (referred to as “post decision review”) as seen the US legal system, is likely to be practically unrealistic in South Korea. Therefore, I am recommending two approaches as follows: One approach is to make stricter rules for the reasons of appeal in the appellate brief (“reasons of appeal”); and the other is to reinforce the lapse of rights system (“lapse of right system”). Also, while seeking the specific methods thereof, I compare the proposals submitted in the course of legislating the current Civil Procedure Act of South Korea with those of the reformed civil litigation system in other countries such as Germany and Japan for reference. By imposing stricter requirements on reasons of appeals, the court can motivate the appellant to submit as soon as possible the reasons for appealing against the trial court’s decision, promoting the hearings, and clarifying the issues to allow effective attacks, defenses and more focused advocacy in court. The reinforcement of the lapse of right system is required since the current system is not rigid enough to prevent the late submission of new attacks and defenses in the appeals proceedings and requires more effective restrictive measures.