소액사건심판법상 이행권고결정의 제도적 문제점에 관한 연구- 헌법상 재판청구권과의 관계를 중심으로 -

Under the Trial of Small Claims Act, the enforcement authority is established when a small lawsuit is filed, the court decides to recommend the defendant to carry out the copy as requested, and the defendant does not file a written objection within two weeks. Article 5-7 (1) of the Trial of Small Claims Act stipulates that a confirmed decision on performance recommendation becomes valid “equal to an irrevocable judgment.” Article 5-8 (3) of the Act stipulates that the claim is not limited to the claim under the provision of Article 44 (2) of the Civil Execution Act. It is problematic how to interpret the above two conflicting clauses, but the precedents and the majority view that the confirmed decision on performance recommendation does not have res judicata. This conclusion is reasonable in the interpretation of the current law. However, even though the plaintiff filed a small lawsuit for judgment, that the court makes a decision on performance recommendation which doesn’t have res judicata not only violates the plaintiff's right to file a lawsuit for judgment, but the plaintiff is at risk of denying the existence and scope of the bond in the defendant's claim. This seems to violate the constitutional right to trial, especially the right to a fair trial, and the application of the criteria under Article 37 (2) of Constitution of the Republic of Korea to the current decision on performance recommendation system could be judged unconstitutional in the view of ‘Minimum Infringement’ and ‘the Balance of Legal Interests.’ If the decision on performance recommendation system falls under unconstitutionality, it shall be deemed that the problems caused by the defect can be sufficiently supplemented through the efficient operation of the Judgment rendered without holding any pleadings and the Payment order under the current Civil Procedure Act.