민사소송절차의 심리구조와 변론준비절차의 투명화 – 2008년 민사소송법 258조 개정과 관련하여 –

In 2002 Korean Code of Civil Procedure(KCCP) was revised completely. Especially, procedural structure was immensely amended and was converted to main hearing system which has been prevailed among advanced countries such as Germany, U.K., and Japan since middle of the 20th century. For a long time KCCP had adopted procedural structure which repeats trial dates very similar to Italian Canonical Model. As a result, trial dates are repeated and procedural speed was very slow and the parties are not satisfied with judicial process. The revised KCCP strengthened pre-trial phase and almost every issues and evidences should be presented and investigated in the pre-trial phase except examination of the witness and parties. And in the trial date every witnesses and parties should be examined with concentrated style. Therefore, trial date should be opened one time in a entire process. We call this procedural model as a New Model Process. However, in the New Model pre-trial procedure generally has been carried out in a closed meeting not in a court room by presiding judge or a single judge designated by presiding judge even though the case should be handled by 3 judges all together. We believed that a closed meeting could foster reconciliation and mediation between parties. In addition almost every pre-trial process is controlled by court instruction not by law. Eventually pre-trial procedure infringed fundamental procedural principles such as publication of trial and immediate trial by 3 judges. On the basis of self reflection KCCP § 258 Sec. 1 was amended to observe diverse principles of trial and the court should designate the earlier trial date as soon as possible instead of designating pre-trial date in 2008. Even though this revision was not intended to abolish the strengthened pre-trial phase, vague wording of revised clauses produced a misconstruction. The author think that current main hearing system is not changed by 2008 revision, however, direction of the revision was not right and inappropriate because we had to enhance the pre-trial phase by way of legalize itself. New clauses stressed early trial date, but trial date would not fruitful without thorough preparation before it. We have to look over the other legal systems such as japanese and german preparation phase because they maintain a concentrated pre-trial system by way of flexibility and diverse preparation tool. The author insist that our new revised clauses should be revised as soon as possible so as to strengthen pre-trial phase. And case management tools are should be more flexible and diverse so as to enhance the concentrated trial date.