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민사소송법 제143조의2의 진술보조의입법취지에 비추어 본 민사소송규칙제30조의2에 대한 비판적 분석

Title
민사소송법 제143조의2의 진술보조의입법취지에 비추어 본 민사소송규칙제30조의2에 대한 비판적 분석
Other Titles
Critical Analysis of the Civil Procedure Rules Article 30-2 in the Lights of ratio legis of Pleadings Assistance of the Civil Procedure Act 143-2
Author
제철웅
Keywords
의사능력; 소송능력; 변론능력; 절차보조; 성년후견; Mental Capacity to Make Decisions; Legal Capacity to Litigate; Capacity to Plead in Civil Proceedings; Pleading Assistance; Adult Guardianship
Issue Date
2017-11
Publisher
한국민사소송법학회
Citation
민사소송, v. 21, no. 2, page. 133-170
Abstract
As the restricted legal capacity system, such as full guardianship and limited guardianship with the power to consent to juristic actions by persons under guardianship becomes weakened due to the influence of UN Convention on the Rights of Persons with disabilities Article 12, the issue of whether parties in civil litigations have legal capacity to litigate is likely to depend on whether they can understand the relevant issues and make decision, based on weighing provided informations. Since even those with impairments to decision making abilities can understand the meaning of lawsuit and defence, and make decision on whether they bring cases before courts or to defend the cases, with the assistance of explanations of experts and close relatives, there will increase many cases where persons with disabilities and elderly bring cases before courts without guardians and litigation guardians representing them. In those cases, it will become much more important to support them in the pleading unless those parties lack the capacity to plead in the proceedings, whereby the supported decision making at the stage of participation in the litigation can materialize. In this regard, the Article 143-2 of the Civil Procedure Act can play a great role. To support decision makings of those parties with disabilities in the court proceeding, it is very important to transmit, explain, and facilitate their expressions and intentions to other parties and courts who have difficulties in understanding what parties with disabilities have expressed, due to the lack of understanding the features of disabilities. In that sense, the pleading assistants of Article 143-2 of Civil Procedure Act should be experts with neutral position. That being said, the Civil Procedure Rules Article 30-2, which is supposed to make concrete the role, allowance of their attendance and position of those assistants, degrades their role and position, rather than ensuring their expertise and neutrality, to that of pleading assistants of the Criminal Procedure Act Article 29, by providing that the transmission and explanation acts of pleading assistants can be cancelled promptly by those parties with disabilities and so on. This provision neglects the objective ratio legis of Article 143-2 of the Civil Procedure Act, which put the very provision just after the Article of Interpretation, which requires expertise and neutrality. This paper argues that the relevant provision of the Civil Procedure Rules should be revised to the direction that the pleading assistants shall play a neutral role to transmit, explain, and facilitate the expressions of those parties with disabilities in the proceedings.
URI
https://www.kci.go.kr/kciportal/ci/sereArticleSearch/ciSereArtiView.kci?sereArticleSearchBean.artiId=ART002290932https://repository.hanyang.ac.kr/handle/20.500.11754/116076
ISSN
1226-7686
Appears in Collections:
SCHOOL OF LAW[S](법학전문대학원) > Hanyang University Law School(법학전문대학원) > Articles
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민사소송법 제143조의2의 진술보조의 입법취지에 비추어 본 민사소송규칙 제30조의2에 대한 비판적 분석.pdfDownload
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