민사배심제도의 도입가능성에 대한 비판적 고찰

A study on the accepting jury trial in Civil Procedure – from the legal theory point of view

According to legal syllogism, the fact finding process is the starting point of all legal system to solve legal problems. The same principle holds on the Civil Procedure. Throughout the Civil Procedure, we must solve civil disputes reasonably, fairly, rapidly and economically. In order to do so, we investigate the precalculus fact relevance exactly. But it is not easy the fact relevance confirming process. The fact finding has returned to various limitations, namely epistemological, hermeneutical, psychological, language phyosophical limitations. Due to these limitatons, it may be not reasonable to perform the fact relevance process alone, the civil judge. So in this sense, discussions about accepting the jury trial in Civil Procedure like Criminal Procedure are being held from old times. It may be so, in this study, we argue that is better the restricted imposing jury trial througout prototypes of civil disputes than the total imposing jury trial on the basis of the legal theory viewpoint. In fact, considering of the fact relevance, it looks better the total imposing jury trial. However, the institutional and functional consideration of the Civil Procedure, the total imposing jury trial may be obstacle to solve civil disputes reasonably. We need to consider even though Criminal Procedure pursuing ‘the substantive truth’, does not impose the ‘civil participation in criminal trials’ completely. Just merely we need to discuss about which category in Civil Procedure we impose the jury trial. At first, in this study we argue it is proper to imposing the jury trial, in the legal credit suit like illegal act. Of course, when the parties do settlement, it could be imposed and used in all civil suits. And on occasions, we can consider the judge executes the jury trial by authority.