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법적 협상(Legal Negotiation)

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Authors
吳守根
Issue Date
1994
Publisher
서울대학교 미국학연구소
Citation
미국학, Vol.17, pp. 203-231
Abstract
Negotiations can be classified into three categories from a legal point of view. The first category of negotiations deals directly with rights and duties, e.g. personal injury, divorce and criminal cases. The second category of negotiations creates rights and duties such as contractual transactions, labor-managernent agreements and trade talks. The third category of negotiations does not pertain to legal matters, but deals with gentlemenly and children’'s quarrel in families. The first two categories aεe to be considered as legal negotiations. By definition, legal negotiations mean negotiations which involve legal issues, that is, rights and/or obligations. These negotiations are usually managed by lawyers. The difference between the first and the second category lies in litigation; if an agreement was not reached, the former is resolved through litigations and the latter can not be resolved through litigations. The first category may be called the ‘law-applying process' and the second category the ’law-making process'. Legal negotiation is a relatively new concept in jurisprudence and legal education. Most legal disputes are settled through agreements with lawyers playing important roles in commercial, political and international negotiations. Because of the traditional litigationoriented structure of jurisprudence, the legal scholarship has overlooked legal negotiation until 1970s. Moreover, many research on negotiations has employed behavioral approach, a method not studied in law schools. As negotiators, lawyers have ralatively strong assets due to the nature of the legal job. Trained to thoroughly understand the facts, they base their decisions on reality, not surmise. They are good at expressing themselves in clear and concise words, resisting ambiguity. They are accustomed to identifying issues, dividing them into a manageable size and analyzing them with objective standards. The American legal system has some advantages in legal negotiation over the civil law system. Adversary and jury system and oral argument make American lawyers more active in persuading others. Statutes is basically ‘being given’ to lawyers so that the statutes are authorative in nature when rendering legal rules. Case laws, however, are the compilation of lawyers’ work in courts. The ‘law making' concept in American law leads American lawyers to have a more positive attitude in law making process. Since Korean lawyers possess the “law finding” concept rather than the “law making" concept, they do not have the same attitude toward legal negotiation as American lawyers. These elements, adversary and jury system and 0ral argument, are good attributes to being a successful negotiator especially in cases from the second category. Trade negotiations are in the second category where a lawyer’s law-making ability has the greatest influence. With trade issues, unlike in other domestic legal negotiations, lawyers have to overcome the barriers of language, culture and national legal systems. Legal negotiation can be taught through many tools; literature, videos, lectures, evaluations, self-assessments, simulation games, and discussions. The three most emphasized subjects in legal negotiation education are these; preparation for legal negotiation, communiction with clients as well as opposing parties and selection of an appropriate negotiation attitude.
ISSN
1229-4381
Language
Korean
URI
http://hdl.handle.net/10371/88472
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Researcher Institutes (연구소)American Studies Institute (미국학연구소)미국학미국학 Volume 17 (1994)
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