싱가포르 협약과 민사조정법의 조정절차에 대한 체계 정합성 확보 방안

초록

There are significant differences between viewing mediation as a procedure and as of something complex dispute resolution tools which leads to an agreement between the parties. If the former position is ta ken, mediation must have procedu ra l characteristics which are distinct from negotiation, arbitration and litigation. Other wise, the mediation is superficial(nominal) mediation, and the nature belongs to litigation, arbitration, or negotiation. In the case of viewing litigation as a procedure, it is inevitable to emphasize the procedural subjectivity of the parties, which grants the parties the right to select procedures, form procedures, and terminate procedures also, which is distinct from negotiation, arbitration, and litigation. Unlike negotiation, mediation has a mediator as an essential element, a nd t he Cauc u s wh ich is d is ti nc t f rom A rbit ration a nd Litigation. This type of mediation can be seen as the form of mediation envisaged by U.N. Convention on International Settlement Agreements Resulting from Mediation. For this reason, from a procedural point of view, consistency in the entire dispute resolution system of mediation is important, and mediation is understood as the restoration and expansion of private autonomy to the parties. For this reason, the deprivation of the party’s procedural rights or the unilateral operation of a mediation system by institutions (organizations) is criticlal. Mediation procedure mainly need to be controlled by the consent of the parties in every phase. In the mediation process, the mediator’s partiality with one party as a guardianship is also regards as a fall into the temptation in the name of procedural efficiency. However, if we look at conflicts and disputes at the national level to lessen the explosion of litigation, looking mediation only from the perspective of procedural tool to restoring private autonomy could be act as a stumbling block. Before ratifying the U.N. Convention on International Settlement Agreements Resulting from Mediation, it is necessary to make efforts to adjust Korea’s mediation system fitting to the Global Mediation Standard. To get to the Goal, I propose to amend A rticles 220, and 461 of the Civil Korea Procedu re Act, and A r ticle 29 of the Korea Cou r t Adjudication(Mediation) Law. This also leads to reorganize various administrative committee mediation systems. I also propose to establish an Integrated National Mediation Institution as an independent national entity(body).

키워드