裁判上 和解에 관한 判例의 動向 = A Movement of Court Precedents on Settlement in the Court

다국어 초록 (Multilingual Abstract)

Korea has legislated the code of civil procedure in 1960. The code of civil procedure has been under the influence of law of Japan since it was based on martial laws of U.S. and the constitutional law of Korea adopting Japanese code of civil procedure. The Civil Proceedings Act of Japan has been also under the influence of that of Cermany, and it could be said that Korean Civil Proceedings Act adopted law from developed countries by Japanese law. As for Korean legal circles, however, it has been undesirable that Korean law still has relied on Japanese law in spite of being independence of Korea. Therefore, the code of civil procedure of Korea has been repeatedly amended and reflected on the actual circumstances in Korea. The most recent amendment of the code of civil procedure has passed in the end of 2001, and it will become effective from the first of July 2002.
Settlement in the court of Korean code of civil procedure is very different from Japan. Article 145 of the Civil Proceedings Act of Korea on settlement in the court prescribes that the court can recommend a settlement to the parties regardless of the degree of a lawsuit. If an system on a decision to recommend settlement is harmonized with concentrated trials to be adopted, the current institution of trials on civil affairs might be improved thoroughly. However, there is a problem that the law permits unlimited effect of excluding further litigation in settlement in the court. Indeed, only a retrial can save flaws on a decision to recommend settlement. For example, when a settlement is concluded that violated the current law for failing to notice its existence in procedure of recommendation to compromise, the parties can not be saved because the settlement can not be a cause for retrial. That is, it is apt to cause a lawsuit against nation on a claim for damages by unlawful act. In conclusion, Article 461 of the code of civil procedure, background of unlimited effect of excluding further litigation, should have been amended with introduction of the institution on a decision to recommend settlement because the Amendment of the Article 461 could solve problems on settlement in the court.

목차 (Table of Contents)

• Ⅰ. 처음에(はじめに)
• Ⅱ. 舊 判例의 立場(民事訴訟法 第431條(현 제461조)가 改正되기 以前의 判例)(舊判例の立場(民事訴訟法第431條(現第461條)を改正する以前の判例))
• Ⅲ. 新 判例의 立場(民事訴訟法 第431(현 제461조)가 改正된 以後의 判例)(新しい判例の立場(民事訴訟法の第431條(現第461條)が改正された以後の判例))
• Ⅳ. 新 判例의 새로운 傾向(新判例の新しい傾向)
• Ⅴ. 和解勸告決定(和解?告決定)
• [Abstract]
• 일본어 번역문
• 중국어 번역문