私文書의 眞正成立에 대한 檢討

• 영문명: Examination on the Materialization of Authenticity of Private Documents
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 안병걸(Byung-Keol Ahn)
• 간행물 정보: 『비교사법』비교사법 제11권 2호, 567~597쪽, 전체 31쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.06.01

영문 초록

The general trend of theory until today was that once the materialization of authenticity of a document is recognized, then the formal admissibility of evidence will also be recognized, and hence the materialization of authenticity of a private document was regarded as same as the formal admissibility of evidence of the document. Nevertheless, a strong voice to distinguish these two concepts has been recently raised. However, most of the scholars with the former opinion have not been mentioning much about the concept of formal admissibility of evidence, which provokes a problem of a circular reasoning where the formal admissibility of evidence of a document is recognized once the materialization of authenticity of the same document is recognized. On the other hand, the opinion of the latter, which asserts that the materialization of authenticity of a document shall be distinguished from the formal admissibility of evidence begins its theory from a new definition of concepts, and the issue of whether such logical development agrees with the current Civil Proceeding Act is rather questionable. In other words, this opinion defines that a judgment on the declaration of intention of the contents which can be extracted in form from the shape of the document the authenticity of that has been materialized and on such legal action is about the formal admissibility of evidence of the document. And the formal admissibility of evidence defined by "Distinction Theory" may be concluded as almost identical as the provisions of Article 415 and 416 of German Civil Proceeding Act, yet there are no specific provisions under Korean Civil Proceeding Act. Therefore, in the interpretation of the Civil Proceeding Act of Korea, there is no need to define the concept of formal admissibility of evidence as same as the provisions on the admissibility of evidence of the document, as prescribed in the provisions of German Civil Proceeding Act. In relation to this, German Civil Proceeding Act defines the term as "Beweiskraft", and not "formelle Beweiskraft" in Article 415(Beweiskraft offentlicher Urkunden uber Erklarungen) and Article 416(Beweiskratf von Privaturkunden). Then there is this question of why German scholars use these provisions on the admissibility of evidence of documents with the term formal("formelle"), despite the rhetorical meaning of such headings. However, considering the importance of preparing a document and affixing signatures to it at the time of executing a legal act, it is reasonable to grant certain degree of validity to such act in proceeding act. Hence, Article 416 of German Civil Proceeding Act provides that the private document with the signature of the issuer of the document proves the fact that the recorded contents are stated by the issuer him/herself. This article does not directly stipulate certain degree of validity on the facts which the relevant party tries to prove, from the document itself which is recognized of the materialization of authenticity. Rather, this article grants certain degree of validity in the aspect of proceeding act on the fact, that the issuer has done such declaration of intention in the existing document. Hence it is deemed that the scholars call this concept as formal admissibility of evidence, in order to distinguish such concept from the substantial admissibility of evidence. In this manner, the term formal admissibility of evidence is used in Germany, in order to distinguish the substantial admissibility of evidence which is an area where liberal impressionism applies from the provisions on the admissibility of evidence of a document as provided under the proceeding act. Nevertheless, despite the lack of such provisions as Article 415 and Article 416 of German Proceeding Act in Civil Proceeding Act of Korea, most of explanatory writings on civil proceeding act use the term "formal admissibility of evidence." The use of the term "formal admissibility of evidence," in spi

목차

Ⅰ. 序 論

Ⅱ. 民事紛爭에 있어서 私文書의 重要性

Ⅲ. 私文書의 眞正成立의 意味

Ⅳ. 私文書의 眞正成立과 形式的 證據力과의 關係

Ⅴ. 文書의 眞正成立의 方法

Ⅵ. 私文書의 眞正成立의 推定

Ⅶ. 私文書의 眞正成立의 推定과 그 飜覆要件

Ⅷ. 眞正成立이 認定 또는 推定된 私文書의 訴訟法上 意味

Ⅸ. 眞正成立이 認定 또는 推定된 私文書의 證據價値

Ⅹ. 印鑑發給制度의 變化와 民事訴訟法 第358條의 立法的 妥當性

【ABSTRACT】