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韓宗烈 慶北大學校 1976 論文集 Vol.21 No.-
The pleading principle in the civil-suit has premised that the status of parties is equal at lawsuit. But their ability are originally different, so that the code of our civil procedure has provided for some system such as, Inquiry-right, the duty of truth-statement and the principle of official proceeding. Yet those systems can not guarantee to make parties equal at their status, I(present writer) have concluded, Because such some system noted above have had the limited effect at themselves, I intend to explain logically the reasons why their equality is not achieved. The study of other problem which makes party's status equal, legal aid and enforcement system of lawer, has been not made in this paper, But it will be done at anothertime, in short furture.
韓宗烈 경북대학교 사회과학연구소 1986 社會科學硏究 Vol.2 No.-
Arbitration has the following advantages over lawsuit. a) Commercial cases are generally ruled by customs; they are usually so complicated and specialized as to be clearly understood only by the traders in practice. Hence, the arbitrators who are used to the trade customs can make appropriate judgements of commercial disputes. b) Lawsuit takes considerable time and expenses. As the commercial disputes are concerned with economic interests, the cost involved. in the lawsuit could spoil the real value of solving disputes. c) The lawsuit decides winner and loser of a dispute; but it does not solve the human relations of both parties. It leaves unsolved the mutual confidence which is a basis of commercial trades. d) The lawsuit proceeds in open courts and eventually reveals commercial activities of both parties. The traders usually do not like such exposure. e) In adispute between parties of different nationalities it is desirable for an arbitrator designated by the parties to solve it, with the intervention of either government excluded. The arbitration, having developed by the reasons above, is not quite often used by the following reasons. a) As an arbitrator is supported to settle the disputes not by laws and regulations but by logic, his individual traits may affect the judgement, which hampers the stability and predictability in the settlement of disputes. b) If an arbitration contract does not provide otherwise, only one arbitrator is usually designated. The arbitrator often represents an acts for the interest of the party by whom he has been designated. c) An arbitrator who is not well informed on legal matters could sometimes make illegal settlement of the cases. That the arbitration is to supplement the weakness of lawsuit does not mean that it may exclude legal considerations. d) When both countries of the parties in international disputes does not have arbitration law, there arises a disparity. For an example, if a korean firm loses in the arbitration, the other party can secure the judgement accoding to New York Treaty; but if he wins and the orther country does not have the arbitration law in effect, he can not secure the judgement in the country. In order to supplement the demerits of the arbitration system and make better use of it, the following improvements are recommended. a) We should institutionalize arbitrators and obviate the possible doubts on the current arbitrators. b) As most of the international trade disputes are concerned with the quality of commodities, we need to establish international institutions for reliable and fair appraisal.