한국민사소송법의 형성ㆍ발전과 미래의 과제

The Korean judicial system has inherited western judicial systems introduced in late the 19 centuries to the early 20 centuries. In other words, there is a great divide between current judicial system and the traditional judicial system. Such a radical departure from the traditional legal system was instantiated by the Korean government’s efforts to withstand armed invasions by the western powers. However, the compulsory annexation by Japan halted whatever progress that have been made. In addition, by adopting Japanese legal system, which already had large western influence, a judicial system which is not related to traditional judicial system of Korea but is close to the western judicial systems came fully into effect. After the independence in 1945, in an effort to make Korea’s own judicial system, Korean national assembly legislated Korean Civil Procedure Code in 1960. Since Japanese Civil Procedure Code was widely consulted while establishing the code, Korean Civil Procedure Code was similar to Japanese Civil Procedure Code in its structure and contents. Japanese Civil Procedure Code was legislated merely through translating CPO, thereby could be evaluated as full reception of German law genealogically, and Korean Civil Procedure Code, which took account of this Japanese Civil Procedure Code largely, could be seen as indirect reception of German Civil Procedure Code. Since the establishment of Korean Civil Procedure Code, there have been 29 amendments up until 2016. While amendments in 1990 and 2002 were whole amendments, the rest were partial amendments. Only 56 years have passed since the legislation of the Procedure Code, however there have been 29 amendments. This implies that Korean society has changed rapidly and that legislative actions answering to the changes have been active. Thus, presently, we have very complete and settled form of civil procedure code. However, there are still parts to be reformed. Following are some of the urgent issues that are in need of reform. 1. Reformation of appeals, especially appeals to the Supreme Court, is needed immediately. The Supreme Court of Korea is composed of 14 justices including the Chief Justice, and 13 justices participate in actual trials. The Supreme Court, where a small number of justices are entitled, receive over 30,000 appeals per year. It is obvious that the flood of appeals cannot be handled appropriately through the current system. Therefore, reformation of appeals to the Supreme Court is an urgent issue. 2. Although the usage rate of ADR has risen, most disputes are still largely handled by the courts. Therefore, reformation and enhancement of usage rate of conciliation or reconciliation system are needed. 3. Recently, class actions on pollution, product liability, etc. have been filed frequently. In Korea, class action systems regarding securities, consumers, and personal information are already enforced, but they are all limited to special areas, and there is no general, unified system that can be applied to class actions in general. Therefore, arrangement of general, unified system of class action settlement is needed. 4. Due to the lack of “discovery” system in Korean legal system, it has been often noted that relevant parties lack a regulatory measure to collect evidences. Although there have been progresses in collecting document evidences, since the amendment in 2002, which posed greater duty to submit related documentations, it seems that systems regarding other forms of evidences are still in need of reformation. 5. There is still complaint about the threshold of courts being high. The lawsuit costs are relatively high and legal fees are expensive, so there should be solutions to assure the rights to access courts and promote democratization of judiciary.