민사소송법상 과학적 증거

• 영문명: Scientific Evidence in Civil Procedure
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 이규호(Gyooho Lee)
• 간행물 정보: 『비교사법』比較私法 제14권 제3호(상), 199~240쪽, 전체 42쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.09.29

영문 초록

  Scientific evidence will be proved through expert testimony in civil procedure. That is, the scientific theory and method will be demonstrated by an expert’s opinion in the related field after the commencement of civil action.
  In terms of the admissibility of scientific evidence, at the outset this Article will deal with expert witness-related court cases in U.S..
  In 1923 in the pioneering case of Frye v. United States, the Court of Appeals of the District of Columbia ruled upon the admissibility of a systolic blood pressure deception test. The court held the test inadmissible, noting that “courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs”. That is, Frye declared the general acceptance test. For almost 70 years in federal courts, as well as state courts, general acceptance approach was the predominant test to determine the admissibility of scientific evidence.
  However, the U.S. Supreme Court in its 1993 Daubert v. Merrell Dow Pharmaceuticals, Inc. opinion overturned the general acceptance test, holding that “the Frye test was superseded by the adoption of the Federal Rules of Evidence”.
  The Daubert opinion upheld the Frye test not to the sole test of admissibility and set out factors to determine the admissibility and reliability of scientific evidence.
  The ruling redefined the term “scientific information” and established tests for the admissibility of a theory submitted as evidence in court:
  “⑴ falsifiability of the theory,
  ⑵ peer review and publication of the theory,
  ⑶ known or potential rate of error and the existence of standards controlling the research on which the theory is based, and
  ⑷ general acceptance of the methodology underlying the theory in the  scientific community”
  The Court followed with General Elec. Co. v. Joiner, Kumho Tire Co. v. Carmichael, and Weisgram v. Marley Co..
  Joiner was a transitional case, moving from a liberal standard of admissibility as suggested in Daubert, to an exacting standard.
  In its 1999 Kumho Tire v. Carmichael opinion, the Court extended Daubert’s general holding to include non-scientific expert testimony as well and adopted a strict scrutiny standard.
  In 2000, the Court confirmed the strict scrutiny approach in Weisgram v. Marley Co..
  Afterwards, this Article assesses the use of, problems associated with, and reactions to expertise in England, France, and Korea from the perspective of comparativists.
  In conclusion, the Article suggests “specialized hearing expert appointed by courts” system, adopted in 2007, be actively used in Korea.

목차

Ⅰ. 머리말
Ⅱ. 미국에 있어 과학적 증거의 증거능력인정 여부
Ⅲ. 영국에 있어 과학적 증거의 감정
Ⅳ. 프랑스 법체계 및 감정의 연혁
Ⅴ. 우리나라의 경우
Ⅵ. 결론
【참고문헌】
[Abstract]

키워드

과학적 증거 민사소송 감정인 감정 전문심리위원 Scientific Evidence Civil Procedure Frye Daubert Expert Witness Expert Testimony