변론재개의무에 관한 대법원 판례의 분석과 입법론

Abstract

According to Section 142 of the Code of Civil Procedure, the court closes the oral hearing when the matter has been fully discussed and it is ready for a decision. Nevertheless, there are cases in which, circumstances arise or become apparent that make the immediate termination of the proceedings seem inappropriate or even incorrect. In such cases, the court “may” reopen the hearing. The wording can just as well emphasize the power of the court to reopen the closed hearing ex officio. But there are some exceptional circumstances in which the court, without having any discretion, is obliged to open the proceedings to secure the fundamental right of the party. Korean Court developed the theory of analysis about the group of cases in which the court is obliged to reopen the case. The court ruled out the condition ① it should be against the procedural righteousness if the party is defeated without giving the chance of submission, ② the court has to heal the illegitimacy of judicial procedure by reopening the trial as the court has the duty to judge a case fairly and appropriately. To overcome the limit of judicial precedent, legislative adjustment is essential. And the suggest legislation is as follows, In particular, the court shall order the reopening when ① When a party applies for the resumption of pleading in order to be given an opportunity to submit new evidence that will affect the judgment, and demonstrates that it has failed to submit it before closing the pleadings due to reasons that are difficult to be held responsible for, ② facts are subsequently presented and made credible which form a reason for retrial, ③ In the event that the party did not have a proper opportunity to present the evidence before the conclusion of the pleadings due to circumstances in which it is difficult to hold the party responsible, and the object of the assertion or proof falls under the main evidence that can influence the outcome of the judgment.