2015년 민사소송법 개정안의 주요내용과 쟁점

Abstract

While the new adult guardianship system has been implemented since July 2013, the current civil procedure code prescribes provisions only about litigation capacity of incompetent or quasi-incompetent person accordingly to the old legal incompetency regime. Also, the new amendment of Civil Code has abolished Family Council and has implemented system of guardianship supervisor, however, the Article 56 of current Civil Procedure Code still prescribes about the special authorization of Family Council. Civil Code has transitional provisions in addendum for this problem. According to Civil Code’s addendum, retroactive effect is not permitted and the prior provisions are not to be applied for those who have already (before the amendment) been adjudicated to be incompetent or quasi-incompetent(§ 2 (1) Civil Code addendum). However, when adult guardianship or limited guardianship or specific guardianship takes effect or in case where a contractual guardian has been appointed or when 5 years have passed after the enforcement of the new Civil code, such adjudication of incompetency or quasi-incompetency loses its effect ex nunc(§ 2 (2) Civil Code addendum). Moreover, within the period of 5 years above when other laws or statutes have quoted “Incompetency” or “Quasi-Incompetency”, then it is considered that such laws or statutes have quoted “Adult Guardianship” or “Limited Guardianship” for those who are under adult guardianship or under limited guardianship(§ 3 Civil Code addendum). This Civil Code addendum aside, it is questionable whether such change of terms in the current Civil Procedure Code(“Incompetency” to “Adult Guardianship” or “Quasi-Incompetency” to “Limited Guardianship”) solves the problem of litigation capacity. Considering that unlike old Civil Code, which in principle has denied general capacity and litigation capacity to incompetent or quasi-incompetent person, the new adult guardianship system tries to respect his/her remaining capacity to full extent, and taking the stability of litigation procedure along with characteristics of litigation capacity into consideration, it is self-evident that such simple change of terms cannot be of proper legislative remedy. It goes without saying that amendment of Civil Procedure Code is exigent, since Civil Code addendum is only valid through the 5 years period. In order to reflect the adult guardianship system of the newly amended Civil Code, “the Department of Justice Civil Procedure Code Amendment Committee” has been constituted in September 2014 and has been in action until February 2015. It has submitted an partial amendment bill of Civil Procedure Code. This article covers the details of this newly submitted bill and presents different opinions which were proposed during this process. By doing so, it clarifies meaning and significance of this bill. However, in the process of explaining the new amendment bill, some parts where logical connections are in need were based on personal opinions, irrelevant to the actual discussion in the committee.