한국 민사법정변론의 소송원칙과 현대적 의의

The basic principles of civil trial that both parties should present their arguments and evidence directly before a judge in an open court have historically guaranteed human rights against state power. The basic principles of civil trial are stated in the Civil Procedure Act and the Rules of Civil Procedure in Korea. The manner in which Korean civil trials have long been conducted has been brief-centered, with the court’s time predominantly spent confirming briefs and attached documents, save for witness examinations. The perfunctory trials for several moments have been repeated before final judgments. Judges could make their decision after reviewing briefs, evidence, and trial reports, at any time even right after they arrived at their new offices. The Korean judiciary tried to emphasize the principle of concentrated trials and the principle of orality through revisions of the Civil Procedure Act in 2002, 2008 and the Rules of Civil Procedure in 2007. However, in the reality of Korean civil litigation, there are criticisms that concentrated trials are rare, and rather, the first trial dates are often delayed, and the final judgments take longer. These problems come from not only the practical problems of the litigation system that is based on the principle of written proceedings, but also the rise in the number and complexity of the cases stemming from intensified capitalism. Also, the rapid development of digital technology affects litigation systems such as electronic evidence. Moreover, in recent years, the COVID-19 pandemic has caused various changes in the litigation process. In this thesis, first of all, I will define “civil trial” as trial that is based on the principles of orality, immediacy, publicity, and adversary system, to prevent the old brief-centered trial practice and build up the basic principles of civil trial, especially the principle of orality. Next, I will examine the ideal and reality of fairness and speed, which are the litigation ideologies in the Civil Procedure Act of Korea, focusing on our current litigation reality. In addition, I will explain the significance of the principles of orality, immediacy, publicity, and adversary system as the supporters for the constitutional rights. In addition, I will analyze the effect on the basic principles of civil litigation, caused by the deepening of capitalism and the development of new technologies in modern society. In particular, I will analyze the positive and negative effects of electronic litigation on orality and the question of whether remote video trial increased due to COVID-19 conforms to immediacy and publicity. Moreover, I will differentiate the principle of open-court from public announcement, explain the competition between the litigants’ basic rights and the people’s right to know, and discuss whether or not a live broadcast of the trial should be included in the principle of open-court, from the perspective of guaranteeing the constitutional right to be heard in modern society.