비송사건절차에서 직권탐지주의의 한계와 그 보완책 - 관계인에 대한 절차보장을 중심으로 -

Article 11 of the Non-Contentious Case Procedure Act mandates that the court investigate facts and examine evidence ex officio to ensure expeditious and purposeful processing. However, an excessive emphasis on this principle risks reducing interested parties to mere objects of interrogation rather than subjects of the procedure. Specifically, when courts utilize facts or evidence collected ex officio as the basis for judgment without affording parties an opportunity to state their opinions, it results in an unfair “surprise ruling”, undermining the fairness and reliability of the trial. Germany enacted the “Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction”(FamFG) in 2008, maintaining the ex officio principle while imposing a duty on parties to cooperate in fact-finding and mandating prior notice if the court holds a different legal view from the parties,. Furthermore, it strengthened procedural guarantees by requiring that parties be given an opportunity to comment on the results of formal evidence investigations. Similarly, through the complete revision of the “Non-Contentious Case Procedures Act” in 2011, Japan stipulated that the court must notify parties if the results of a factual investigation could cause significant changes to the procedural conduct, thereby enhancing transparency and ensuring substantial opportunities for response. Conversely, Korean practice and case law remain evaluated as authoritative and closed in their operation of the ex officio principle. Recent Supreme Court rulings (e.g., Supreme Court Order 2016Ma5394, dated April 14, 2022) maintain the position that the failure to grant parties an opportunity to state opinions on materials collected ex officio does not, by itself, render the decision unlawful. This stance neglects the procedural fundamental rights of parties for the sake of expediency, even in highly contentious cases such as commercial non-contentious matters, and does not align with modern judicial ideals or international legislative trends. The “right to a fair trial” guaranteed by Article 27 of the Constitution encompasses the “right to be heard”, which grants parties the right to be sufficiently informed about and to comment on the facts and legal issues forming the basis of the judgment. Although explicit provisions in the current Non-Contentious Case Procedure Act are lacking, procedural rights in non-contentious cases must also be substantially guaranteed through constitution-conforming interpretation.