다국적민사소송법가안에 대한 일반적 고찰
A Critical Look at the ALI Transnational Rules of Civil Procedure

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서울대학교 법학연구소
법학, Vol.40 No3 pp.1-49
美國法曹協會(American Law Institute)다국적민사소송법비지니스 분쟁business dispute
This article is to critically analyze and discuss the Draft of Transnational
Rules of Civil Procedure presented by the American Law Institute in April,
1999. The draft is an endeavor to internationally harmonize civil procedure
rules by which business disputes are litigated. It is thus the version to
overcome the fundamental differences between common law and civil law
The uniqueness of the American system, represented by the broad discovery
and jury trial, is not much reflected on the draft.
In the process the procedural similarities between two systems are much
discussed: Standards for personal as well as subject-matter jurisdictions;
qualifications for a judge; notice to defendant; how to formulate claims;
fact-finding based on evidence; expert testimony; rules for deliberation and
decision; rules for appellate review; and finality of judgment. Among these the
rules of personal jurisdiction, notice, and recognition of judgment are quite
similar that an international convention can embrace them. With respect to
other issues reliance can be placed on the local rules.
The procedural differences between two systems are as follows:
1) civil law litigation proceeds through a series of short hearing sessions,
while common law litigation has a preliminary or pre-trial stage, and
then a trial at which all the evidence is received consecutively.
2) In the civil law system the judge has responsibility to develop the
evidence and articulate the legal concepts that should govern decision,
whereas in the common law system the advocates has the same
3) A civil law judgment rendered by the court of first instance is subject to
more extensive reexamination than a common law judgment with respect
to facts as well as law.
4) Judges in civil law systems usually start legal career at the young age
and serve for life. Therefore they lack the experience as a practitioner.
The common law judges are selected from the bar at the later stage of
their life.
The article also discusses rules for formulating claims, discovery, procedure
at plenary hearing and second instance review and finality of judgment.
Finally analyses, comparisons, comments and criticisms are made on each
article of the Draft, wherever applicable.
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 40, Number 3 (2000)
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