ALI/UNIDROIT가 채택한 국제민사소송원칙의 구조와 내용 -우리 민사소송법에의 시사점을 중심으로

Abstract

In spring 2004, ALI and UNIDROIT have officially accepted the Principles of Transnational Civil Procedure(hereinafter “Principles"). 6 years have passed to produce an intended meaningful outcome. The Principles, consisting of 31 provisions, aim at reconciling differences among various national rules of civil procedure, taking into account the peculiarities of transnational disputes as compared to purely domestic ones. This progress seems to be thought highly of by both ALI and UNIDROIT. They also drafted rules of Transnational Civil Procedure(hereinafter “Rules") but it has not been accepted yet. The helpful compromise was to suggest the Principles for complete approval and to offer the Rules as an additional reporters'study for a possible implementation of the Principles. Although the scope of the Principles and Rules has initially been only limited to the international commercial transactions (Principle's Scope and Implementation, Rule 2.1), the ultimate goal is to harmonize and approximate the civil procedures among nations. They mely not only serve as guidelines for code projects in countries not having procedural tradition, but also may initiate law reforms even in countries having high-quality procedural tradition, they might also be applied in an international arbitration context by analogy Especially, the Korean Supreme Court has expressed its deep interest in the Principles and Rules because it believes that the internationalization of Korean Civil Procedure Law(hereinafter “KCPL") is one of the major tasks for reform of the KCPL Since the revision of KCPL in 2002, Korea has devoted to find an appropriate model in civil litigation procedure by exploring mein hearing system it is so called "New Model'in Korea) and development of evidence law. Furthermore, Korea has already revised the International Private Law to establish the fundamental principle of the International Jurisdiction. Then, the Korean legal community hopes that establishing a universal civil litigation procedure could be accomplished in the near future. By these accounts, the hope and expectation of the Korean legal community for the role of the Principles and Rules must be higher. These situations and backgrounds are the basis of this research Even if the draft Rules would have never become law in any country in the near future, they will still serve a useful purpose. They provide, in concrete form, a set of rules prepared by two leading scholars aimed at fusing the best procedural elements respectively from civil law system and common law system into a single coherent procedural system. The draft Rules can thus serve, if nothing else, as a reference which can help us to diagnose our current procedural system, it may accelerate improvement of current local procedural law by itself or at least guide us where to go by broadening our understanding of procedural justice.