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Prohibition of Disadvantageous Alternation as a Form of Principle of Disposition - Civil Procedure Law article 203 and article 415 of the analysis -

  • DONG-A LAW REVIEW
  • 2011, (53), pp.377-406
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Beom Kyung Chul 1

1경희대학교

Accredited

ABSTRACT

With a consideration that the Civil Proceedings Act No 415 is a scope of accepting an appeal, the verdict of the first trial can be changed within the bounds of insubordination. However, it is not same when a contention in relation to commerce is conceded, and the Act No 425 states that if there is no specific regulations on procedures of the appeal and the trial at the Supreme Court, the regulation from the first chapter would be applied, therefore, the regulation of the Act No 415 applies to both the appeal court and the trial at the Supreme Court. According to the predominant view and the precedent inclination of interpretations of the foregoing provisions, under Principle of disposition, the court cannot determine any matters that the applicant did not request in the civil suit procedures, and so as the appellate trial. Thus, it can be said that, the doctrine of request arrest which limits the scale of judgment within an appellant himself and Prohibition of disadvantageous alternation which precludes turning findings of lower courts into favor or the opposite far beyond the bounds of the insubordination as a result of the constraint are conceded. While, negative interpretations that deny the concept of Prohibition of disadvantageous alternation are arising today and they argue that there is no substantive enactment defining the concept and there is no practical benefit as it aggregates work burdens for the court. However, the current civil suit is based on Principle of disposition and Prohibition of disadvantageous alternation as a manifestation of the principle of private autonomy, and processes by rational persons involved and the court taking proceedings in order to win an irrevocable favor judgment. The process is established by the view of liberalism, as the result of modern civil revolution, which procures human dignity by accomplishing people- oriented procedures. Therefore, the element of an adjective law of modern liberalism, Principle of disposition and Prohibition of disadvantageous alternation are the spirit of the civil suit and hence, disallowing the concept because of lack of the substantive enactment is not appropriate. Furthermore, the right of appeal must be guaranteed as a part of right to have a trial and thus, wrecking basic human rights just because of court’s work burden is an infringement of the right to have a trial. This paper perceives those problems. Thus, this paper examines the origin of Prohibition of disadvantageous alternation and discusses both criticism and praise on its form of existence. Then analyze the form in the appeal system in connection to the Principle of disposition. In addition, apply the Prohibition of disadvantageous alternation as a manifestation of Principle of disposition to the salient parts of the civil suit that is being the object of controversy.

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