사법접근권과 정의접근권의 분화 현상과 재판절차와 조정절차의 준별 필요성

초록

Mediation, which is translated as 조정(調停) in Korea, can be considered a completely different system in terms of procedural characteristics. In Korea, 조정(調停) generally grants the mediator adjudicator aiming for a swift resolution of disputes, whereas mediation provides to the party-led procedures and gives decision-making power to the parties, not acknowledging adjudicative role of the mediator. There is a prevailing criticism in academia regarding the operation of mediation as adjudication, but there are no signs that the current Korea mediation practices will change. This is understood as of the unique dispute resolution culture of Korea. Nevertheless, since the UN Singapore Convention on Mediation is based on autonomous and party-led mediation processes, Korea mediation practice, which operates in the style of an adjudicator, faces the task of improving to global standards. Due to these characteristics of Korea mediation, access to court (the right to a trial; A2C) and access to justice (A2J) are understood in a consistent manner in an advanced countries, without significant differences in meaning, as access to court. In Korea, however, they are distinguished from each other. I have termed this phenomenon as the decoupling or separation of the two. However, the separation of these two terms are not desirable for the development of litigation and mediation system. Accordingly, I proposed the following measures to solve this problem: separation of institutions between trial procedures and mediation process, prohibition of placing importance on mediation success rates or agreement success rates in mediation proceedings, abolition of the system of considering agreement in mediation substitution decisions or reconciliation recommendation decisions, exclusion of the same effect as a court settlement effect on the effect of mediation agreement, impose on the obligation of the judge and/or mediator to provide detailed oral explanations (guidance) to the parties regarding the choice of mediation process, securing the human and material independence of mediators or mediation institutions, and establishment of support and development for private institution mediation. At present, Korea courts view mediation as a system to alleviate the court’s caseload, effectively operating it as a unilateral adjudicative procedure or a simplified civil fast track procedure. This also suggests an intention to supplement the shortage of judges by inviting mediators from outside the courts at a low cost. The mediation fees paid by the courts to external mediation agencies are very low. At the same time, Korea court is standing mediation committee members are primarily comprised of individuals with judicial experience or former judge, with a minority comprised of attorneys. The court's basic understanding appears to be that the standing or full-time mediation committee members of the Court Mediation Center should be responsible for drafting decisions. Since mediator’s decision have both res judicata effect and enforceability effect, the court seems to view mediation as being equivalent to a court judgment. I believe that mediation settlements should never be granted res judicata effect. Mediation is not a trial. However, my argument does not imply that parties should be allowed to repeatedly argue even after reaching an agreement during the mediation process. My argument is simply that a court should not grant the same effect as a judgment in cases where the matter has not been resolved by a judgment. If the parties reach an agreement but later file a lawsuit to the same case, the court should not dismiss the lawsuit itself on grounds of res judicata. Instead, if the agreement violates mandatory law, the court could invalidate it. In other cases, the court should simply review the claim of the party who overturned their agreement and just simply dismissing the claim. If the court respects the results of mediation agreement and does not easily give a victory to the party who overturns their agreements, the number of cases will naturally decrease even if it does not grant an effect that exists only in litigation, such as res judicata. If the mediation process is operated in a way that puts pressure on the other party to protect one party, it is difficult to implement the fairness, neutrality, and equality of both parties, which are the basic principles of the process, and it is difficult to secure not only the right to access to court, but also the right to access to justice; Access to Justice. Of course, this doesn’t mean that court mediation or an administrative mediation committee is entirely negative. It’s entirely depends on the mediator’s ability to utilize their capabilities to implement to the defect of litigation. Sometimes, due to caseloads and court backlogs, access to court is difficult to secure, and mediators often facilitate mediation process to expedite the delivery of substantive justice to the parties. In such cases, administrative committee mediation can serve as a novel way to achieve the right to justice that even litigation fails to achieve. Mediation process can be a tool for achieving justice, or vice versa, depending on how they’re implemented. However, the problem is that justice often takes the form of wholesale justice or wholesale injustice due to the mediator’s insufficient capacity in mediation.

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