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

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서울대학교 법학연구소
법학, Vol.40 No.3, 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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