상사법원의 도입방안에 관한 연구

Efficient resolution of commercial litigation requires consideration of collective rights relationships and an understanding of the unique legal principles of commercial law. In particular, as commercial cases become larger, more sophisticated, and more international, there is a growing need to improve the expertise and expediency of commercial cases. Korean courts designate and operate commercial/corporate divisions, but due to the low proportion of specialized cases and the rotational assignment system, it is difficult to conclude that the operation of these divisions alone ensures sufficient secured expertise in commercial cases. Considering the advancement of specialized knowledge in resolving commercial cases, the need for separate procedures for international commercial cases, the large-scale commercial disputes, and the demand for expertise from outside the court, it is necessary to establish commercial courts as independent specialized courts at the institutional and organizational level to improve the expertise of our courts in commercial cases. If the commercial court is introduced and an international commercial tribunal is established to handle international commercial cases, Korea has strong potential to become a preferred forum for dispute resolution, as the expertise and reliability of international commercial cases will be enhanced. Considering that the annual number of cases handled by the commercial/corporate divisions exceed the annual number of cases handled by the Bankruptcy Court and the Intellectual Property High Court, sufficient demand for trials is expected even if the commercial court is established as an independent specialized court. If the commercial court is introduced, it is proposed to establish it as an independent specialized court and establish an international commercial tribunal within it. Since the Maritime Court also handles maritime administrative and criminal cases, which require expertise distinct from that needed in commercial cases, it is desirable to establish it separately. Considering the expected number of cases, accessibility and convenience for service users, it is proposed that commercial courts be established in Seoul, Incheon, and Busan, and that the international commercial tribunal be set up within either the Seoul Commercial Court or the Incheon Commercial Court. In terms of jurisdiction, it is appropriate to refer to the examples of foreign commercial courts and existing specialized courts in Korea and to stipulate that cases that can be judged by the commercial court include (ⅰ) commercial litigation cases and commercial non-litigation cases as prescribed by the Supreme Court Rules, (ⅱ) cases of disqualification or recusal of commercial court judges, and (ⅲ) cases that fall under the jurisdiction of the commercial court according to other laws. Given the purpose of establishing the commercial court and the interests of the majority, it is reasonable to provide the jurisdiction of the commercial court as exclusive jurisdiction. In addition, since it is difficult to view small claims cases as cases that require expertise to be handled by the commercial court, it is necessary to set the minimum claim threshold for both domestic and foreign commercial cases to exceed 30 million won in the value of the subject of the lawsuit. Regarding the composition of the judiciary and the expertise of the judges, it is necessary to appoint commercial specialist judges rather than lay judges and have them receive continuous specialized education. The appointment of foreign judges should be carefully decided after closely analyzing whether there is an infringement of the right to claim a trial under the Constitution, the effect of attracting international commercial cases, and the image enhancement effect, etc. In order to enhance the professionalism of judges belonging to the commercial court, it is necessary to ease the rotation system and extend the term of service of commercial specialist judges. In terms of procedure, it is necessary to introduce a case management conference by referring to the examples of foreign commercial courts to manage the progress of commercial cases expediently and efficiently, and to amend the Court Organization Act to permit proceedings in English in commercial courts. Although there are some prior studies on the introduction of international commercial courts, there is very limited research on the establishment of commercial courts as independent specialized courts that handle both domestic and international commercial cases. It is hoped that research will continue to suggest specific plans for the introduction of commercial courts, based on references to successful cases of foreign commercial courts and empirical analysis of the effects of introducing commercial courts on the resolution of commercial lawsuits.