가사비송절차에서의 절차보장

Procedural Guarantee in Family Non-litigation Procedures

There have been few domestic discussions of procedural guarantee in family non-litigation procedure in Korea. The purpose of this study is to identify procedural guarantee in non-litigation procedure, particularly family non-litigation procedure and to examine specific contents of such guarantee. Related to procedural guarantee recently, there have been qualitative changes from formal minimum opportunity such as the existing right to express opinion and right of application for dissatisfaction into substantial, effective function guarantee accompanied with procedural consideration for persons related. It is needed to establish substantial procedural guarantee independently in order to secure justification of procedures even in non-litigation cases. There have been controversies of the independent position and cooperative obligation of the persons related to non-litigation case procedures. However, due to the restrictions in the theory to detect authority, it is reasonable to approve the cooperative obligation in procedure of the parties concerned that has duplicity in procedural guarantee for the parties concerned. In the family non-litigation procedures, the theory to detect authority and the theory of cooperative obligation in procedure may be compatible. Requests of independent position and procedural guarantee of the persons related to procedure may be retreated when simplicity, flexibility, and rapidity of procedure are underlined in order to secure formation of sponsored legal relation in family non-litigation cases and headship of court. However, it is needed of sufficient procedural guarantee for the persons related to family non-litigation procedures. Opportunities to express opinions by the parties concerned and the persons related should be secured on data for decision during the course of judgment procedures without asking of Ra or Ma types. Thus, the author of this study suggest that it may be needed to establish regulations of obligations of court and the parties concerned and the right to express opinion. As long as family case judgment is public service, procedural guarantee may take an important share in qualitative guarantee of the service as the purpose of family case judgment. In this context, theory of procedural guarantee in family non-litigation may become a basis not only to legitimize family trial system as a national system but to secure public confidence on family trial procedures.