공정한 재판과 석명 활성화 논의의 필요성

• 영문명: The Necessity of Ensuring a Fair Trial through the Strengthening of Judicial Explanatory Guidance
• 발행기관: 충북대학교 법학연구소
• 저자명: 윤세교(Se Gyo Yoon)
• 간행물 정보: 『법학연구』第36卷 第1號, 245~283쪽, 전체 39쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2025.06.30

국문 초록

Korean civil litigation is grounded in the principles of party presentation (adversarial) system, the free evaluation of evidence, and the high probability standard in fact-finding. While this structure contributes to ensuring party autonomy and the prompt conduct of trials, it also reveals significant limitations in achieving substantive justice—particularly in cases where parties with just claims lose due to insufficient allegations or failure of proof. To address this issue, the court’s explanatory duty (so-called seokmyeong) has been established as an institutional mechanism. However, under Article 136 of the Korean Civil Procedure Act, this duty is defined merely as a discretionary power of the judge. As such, interpretations and practices concerning its exercise remain inconsistent. Nonetheless, the Supreme Court of Korea has increasingly interpreted this duty as a judicial obligation, thereby gradually expanding its scope and application. In contrast, Germany explicitly codifies the court’s explanatory duty as a legal obligation, recognizing it as a substantive tool for judicial management of litigation. Similarly, Japan understands and applies the duty as mandatory. These comparative approaches suggest that Korea, too, must substantively reinforce the explanatory duty of the court to overcome inherent limitations in fact-finding. Accordingly, this article identifies and analyzes the structural limitations of fact-finding in Korean civil procedure and proposes the mandatory imposition of the explanatory duty as a means of redress. To facilitate the reader’s understanding, the paper first conceptualizes seokmyeong as a judicial power of case management. It then examines the general framework of the explanatory duty in Korean law, followed by an analysis of recent Supreme Court decisions. The article also reviews the explanatory duty systems in Germany and Japan. Based on these comparative insights, policy directions and legislative proposals are presented to promote more effective remedies and ensure substantive rights protection. By reinvigorating the explanatory duty—already embedded within Korea’s legal framework—this discussion aims to enhance the fairness of civil trials and contribute to achieving substantive truth and genuine relief for right-holding parties.

목차

Ⅰ. 서론

Ⅱ. 우리 민사소송에서의 사실인정에 관한 기본원칙 및 한계

Ⅲ. 우리 석명제도

Ⅳ. 대륙법계의 석명제도

Ⅴ. 정책 방향 및 입법 제안

Ⅵ. 결론

참고문헌

키워드

석명의 의무화 변론주의 시정 고도의 개연성 공정한 재판 소송지휘권 강화 Mandatory explanatory duty Correction of adversarial limitations High degree of probability Fair trial Strengthening judicial control over proceedings