가사절차에서의 진실발견

Truth Finding in the Domestic Procedures

It is important to find out truth in the process of family litigation case as well as common civil cases. The Domestic Litigation Act of Korea provides that the Family Court shall investigate the fact of the case by official authority or ex officio in the article of 17. This provision applies to the cases of family litigation cases of Category A(가) and B(나) by the reason of public interest of domestic cases. It is common in Korea, with the respect of the meaning of the article 17, to interpret that the court should follow Untersuchungsmaxime or “doctrine of Ex Officio investigation of fact” prior to the Verhandlungsmaxime or “doctrine of the party-oriented investigation of fact”. But the Supreme Court of Korea say that the court use ex officio investigation in case of insufficiency of argument of the parties. It is hard to understand the opinion of the Supreme Court. The Act also provides that the court should investigate the fact of non-litigious domestic cases by ex officio, by the application of mutatis mutandis of the Non-Contentious Case Litigation Procedure Act Article 11 in the article of 34. It is said that in the non-litigious domestic cases the court has wide discretionary power for the welfare of the parties. Even in the domestic mediation cases, you cannot say that fact finding is not necessary. The agreement between parties can made on the base of fact. But the Act does not have any provision about fact finding in the process of mediation cases. We do not believe the absence of the provision does not mean prohibition of fact finding.