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KCI등재 학술저널

辯論準備期日을 둘러싼 下級審간의 混線과 代案의 提示

서울고등법원 2005. 7. 1. 선고 2003나 75307 配當異議사건과 관련하여

In 2002 Korean Civil Procedure Code(hereinafter called KCPC) was deeply revised especially in the field of pretrial and trial process, so that pretrial process is strengthened to promote efficiency and speed of process. The KCPC and courts adapted Case management method(so called New Model) and every cases are should be managed from the filing of the complaint with the court and in principle referred to pretrial process. Pretrial process in old KCPC is originally designed to prepare trial in order to simplify or formulate the issues in the case. But in the pretrial process under the New Model almost all of the evidences except examination of witnesses and parties are introduced and taken of evidence by presiding or commissioned judge(hereinafter called presiding judges). And the presiding judges have discretion to schedule a pretrial conference, which is normally held in chambers, of course, not with public hearing. But Korean Constitutional Law Sec. 109 provides principle of publicity and in KCPC Sec. 204 principle of immediacy is written. In effect pretrial conference resembles closely trial process functionally but it is operated against important principles of constitution and KCPC such as publicity and immediacy. It could provoke some problems in the process of pretrial and trial because of conflicts between function and operation of pretrial conference. In this article it is focused on how we can overcome this conflicts judicially and legislatively.

Ⅰ. 들어가는 말

Ⅱ. 변론준비기일과 변론기일의 운용현황과 비교

Ⅲ. 비교법적 검토를 통한 준비절차제도의 특성 파악

Ⅳ. 준비기일의 법적지위를 둘러싼 하급심간의 혼선

Ⅴ. 통일적인 해석 가능성과 대안의 제시

참고문헌

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