신민사소송법에서의 문서제출의무의 범위

• 영문명: The Scope of the Document Production Order in the New Code of Civil Procedure
• 발행기관: 한국재산법학회
• 저자명: 김원태(Kim Won-Tae) 김상영(Kim Sang-Young)
• 간행물 정보: 『재산법연구』재산법연구 제22권 제1호, 359~387쪽, 전체 29쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.06.01

영문 초록

One of the major revised items in the New Code of Civil Procedure, which came into effect on the 1st of July, 2002, is the one regarding the system of Document Production Order. In this revision of the system of Document Production Order, the most remarkable point is the generalization of the Document Production Order. To realize the idea of the equality of weapon in legitimation between parties concerned as much as possible, the New Code of Civil Procedure revised the scope of the Document Production Order by expanding it from the existing Limited Obligation to General Obligation. However, in the form of Article 344 of the New Code, the Obligation of Document Production and the Document Exempted from the Obligation of Production are defined into one article, which is composed unsystematically, very complicated and hard to understand. In this thesis, examined were problems surrounding the Document Production Order, and presented were directions for improvement as well as the objective interpretation of Article 344 regarding the scope of the Document Production Order. The scope of the Document Production Order should be interpreted in the direction where it is consistent with the expansion of the function of Evidence Gathering Procedure at which the New Code has aimed. Thus, under the New Code of Civil Procedure, Profit Documents or Legal Documents should be limited to their own nature, while the documents of which Document Production Order has been recognized according to the expanded interpretation of Profit Documents or Legal Documents under the Old Code should be handled as the document in the newly established Clause 2. Clause 2, Article 344 of the New Code of Civil Procedure can be estimated as materializing the Obligation of Judicial Cooperation by people for the court to find proper facts. Therefore, the case that the obligation of production is easily denied must not be acknowledged. Moreover, on the theory of legislation, it is desirable to delete the regulation in which Official Documents are defined as the exception of generalization of the Document Production Order. As the theory of legislation, the following revised draft is presented. Article 344 [the Document Production Order] Unless the document comes under any of the following items, the person who has the document shall not deny the production of it. 1. The document in which the matters defined in Article 314 are written regarding the person who has the document or any person who has any of the relations with him in the items of the same article. 2. The document in which the matters defined in each item of Clause 1, Article 315 are written and not exempted from the obligation of secrecy. 3. The document to be only used by the person who has it. 4. The document concerned about public officials' secrecy on assignment, and its production may damage critical national interests.

목차

Ⅰ. 머리말

Ⅱ. 문서제출의무 규정의 조문구조

Ⅲ. 신법에서의 문서제출의무를 둘러싼 문제점

Ⅳ. 신민사소송법 제344조에 대한 합목적적 해석

Ⅴ. 결론 -입법론을 겸하여-

참고문헌

Abstract