가사비송절차에서의 처분권주의와 그 제한

Abstract

In family non-litigation cases, the principle of disposition is limited throughout the initiation of the procedure, the specification of the subject of judgment, and the termination of the procedure. As family non-litigation cases are extremely diverse, it is needed to review the principle of disposition and its limitation issues individually and specifically by the case. It is no subject of uniform judgment. This study thus set out to review several issues regarding the principle of disposition and its limitation in family non-litigation procedures individually by the case according to the order of the initiation of the procedure, the subject and scope of judgment, and the termination of the procedure. The scope of the research was extended to the regulations to be added to the whole amendment proposition of Family Litigation Act as well as the regulations of the current law.
 The principle of disposition is limited to some degree in the initiation of the procedure to guarantee the public interest of a case even in family non-litigation cases with the other party as well as those with no other party.
 Traditionally, the non-litigation procedure emphasizes the guardianship nature or discretion of the court and adopts the ex officio principle, which explains why the court is not restricted by the request of the concerned party. There is no thinking of the binding force of the purport of claim in a procedure initiated by the authority of the court. Even in family non-litigation procedures initiated by a claim, however, the principle of disposition still applies, which means that the court is restricted by the purpose of claim and cannot make a qualitatively different type of judgment from the claim. The court is, however, allowed to run a trial over its scope in a matter of degree in certain cases without being restricted by the purpose of claim. In this viewpoint, the principle of disposition is limited.
 The Family Litigation Act in force poses no particular limits to the withdrawal of request for trial. Its amendment proposition includes special regulations(Article 61 of Amendment Proposition) that certain cases including guardianship cases can withdraw a request for trial only after getting permission from the family court on the premise of free withdrawal of a request. In this sense, the amendment proposition seems to limit the principle of disposition relatively broadly in relation to request withdrawal in family non-litigation cases.