한국 민사소송의 구술변론권 입법변천

The principle of orality in civil litigation is based on the principle that parties directly and orally present their arguments in open court before a judge. Civil litigation in Korea, a continental law system, presents a striking contrast to the jury trial of the Anglo-American legal system. In Anglo-American civil jury trials, a single, continuous, and concentrated trial is conducted, led by the parties. In contrast, in Korean civil courts, aside from witness examination, parties confirm the submission of pre-submitted briefs and accompanying documentary evidence, make statements citing these documents, and only briefly respond to the presiding judge’s clarifications or comments. Prior to 2008, even such simple oral arguments were difficult to permit in Korean civil litigation, which is the ‘perfunctory orality.’ This paper first examines what the principle of orality as a litigation principle is, who is required to speak what under the principle of orality, what its purpose is, and why it should become a principle of civil litigation. Next, this paper examines how orality actually manifests itself in civil courts, how foreign legislative precedents have handled orality, and whether Korean civil litigation is based on orality. Specifically, this paper clarifies the significance, purpose, and scope of orality as a civil litigation principle. It then categorizes orality as it manifests in litigation practice into substantive orality and perfunctory orality. Based on this, this article compares and analyzes orality in the Anglo-American and Continental legal systems. Finally, this paper examines the legislative evolution of orality in Korean civil litigation, its litigation practice, and the problems in litigation practice, including recent delays in litigation, and their solutions, from the perspective of the parties’ right to be heard.