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CASE MANAGEMENT IN KOREAN CIVIL PROCEDURE AFTER 2008 KCCP REVISION

Title
CASE MANAGEMENT IN KOREAN CIVIL PROCEDURE AFTER 2008 KCCP REVISION
Author
한충수
Keywords
case management; main hearing system; Principles of Transnational Civil Procedure; pre-trial proceedings; taking of evidence
Issue Date
2016-02
Publisher
한양대학교 법학연구소
Citation
Hanyang.Journal of Law, v. 4, Page. 1-23
Abstract
The Korean Supreme Court has developed New Model, which was newly accepted and enforced in Korean civil procedure system since March 1. 2001, to reform the structure of the civil procedure process and to raise the procedural efficiency. The New Model aims at strengthening case management and role of judges in the whole process. Furthermore, the New Model also divides the process into pre-trial phase and concentrated main hearing phase. According to the planned new model, every contentions and most evidences except examination of witnesses and parties should be presented and taken during the pre-trial phase including pre-trial conference. After then, the case should be closed through the one-time main hearing trial date. However, methods of managing pre-trial process are not standardized and most judges could not realize appropriate managerial role for case management until now. Accordingly, the New Model is not firmly established in Korea. Additionally, pre-trial procedure infringed fundamental procedural principles such as publication of trial and immediate trial by 3 judges. In the event KCCP Art. 258(1) was amended to observe diverse principles of trial and the court should designate the earlier trial date as soon as possible instead of designating pre-trial date in 2008. Even though this revision was not intended to abolish the strengthened pre-trial phase, vague wording of revised clauses produced a misconstruction. The author thinks that current main hearing system is not changed by 2008 revision basically, however, direction of the revision was not right and inappropriate because we had to enhance the pre-trial phase by way of legalizing itself. New clauses stressed early trial date, but trial date would not be fruitful without thorough preparation before it. We have to look over the other legal systems such as Japanese and German preparation phase because they maintain a concentrated pre-trial system by way of flexible and diverse preparation tool. The author insists that our new revised clauses should be amended as soon as possible so as to strengthen pre-trial phase. And case management tools should be more flexible and diverse so as to enhance the concentrated trial date. On the other hand, the Principles of Transnational Civil Procedure (hereafter ‘PTCP’) were accepted with unanimous approval in April 2004 by American Law Institute (ALI) and International Institute for the Unification of Private Law(UNIDROIT) at their annual meeting. The PTCP is designed to contribute to a worldwide harmonization of civil procedure and should have effect on not only transnational commercial case, but also legal orientation for important issues of reform within the frame of international consent and its probable development. Therefore, study of the PTCP should be a good guide for us to establish the new main hearing system in Korea. The Author would like to treat some problems of the recent hearing system and in the same breath find reasonable solutions for them from the PTCP.
URI
http://hylaw.hanyang.ac.kr/html/02-collection/board?tb_name=eng_journelhttp://hdl.handle.net/20.500.11754/31751
Appears in Collections:
SCHOOL OF LAW[S](법학전문대학원) > Hanyang University Law School(법학전문대학원) > Articles
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