가사비송 재판의 취소·변경 및 재심

The Cancellation, Alteration, and Retrial of Family Non-Litigation Trials

Trials for non-litigation cases, in general, have the self-binding force for the court after their announcements. Self-binding force takes effect immediately with no need to wait for formal finality since the recognition of free changes to such trials can damage the legal stability and have adverse effects on the reliability of trials once they are announced as trials externally. Trials for non-litigation cases get involved in the formation of legal relations between the parties with the nation as the guardian rather than aiming for the final confirmation of rights and obligations for their existence and non-existence. When it is apparent that such trials are not fit for the given situations, being bound to them is not appropriate. It is rather needed to alter such trials to fit the given situations, which raises a need to recognize a trial cancellation and alteration system. In such substantial law as civil law, however, Article 19 of Act on Non-Litigation Case Procedures is not applied when there are provisions for cancelling or altering family non-litigation trials due to the changed circumstances. The Article is not applied either when there are provisions for individual parties' cancelling or altering family non-litigation trials written in such adjective laws as Family Litigation Act and family litigation rules. In family non-litigation cases, there are a lot of things constantly involved in the legal relations between the parties with some taking long-term effect for the future. One instance involves parent-child relationships since it can be rather harsh to admit that the court judgments will never change in spite of changes to the growth and environments of individuals. The content of trials should keep maintaining the best fit content according to the changing circumstances between the parties so that the family court will exercise its functions as the guardian, which makes it essential to guarantee the possibility of trial cancellation and alteration according to the changing circumstances. Cancellation and alteration due to the changing circumstances after a family non-litigation trial should also be addressed based on Article 19, Clause 1 of Act on Non-Litigation Case Procedures. Since there are no direct stipulations regarding the retrial of family non-litigation trials in Family Litigation Act, family litigation rules, and Act on Non-Litigation Case Procedures, there is a need to review whether to allow for retrials in family non-litigation cases. Some argue that family non-litigation trials can be altered with a single word and no explanations since the judgments of non-litigation cases have no res judicata. Even though family non-litigation procedures are carefully tried like other trial procedures, however, there can be trials that meet the retrial requirements prescribed in Civil Proceedings Act, which raises a need to recognize a retrial system for family non-litigation trials.