변론주의 보완책으로서 석명권

• 영문명: Eclaircissement Authority as Complementary Measures about the Principle of Pleading : A Study on the Nature of Legal on the Article 103 ⑴, ⑷ of the Civil Proceedings Act
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 범경철(Kyung-Chul Beom)
• 간행물 정보: 『비교사법』比較私法 제16권 제3호, 569~596쪽, 전체 28쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2009.09.30

영문 초록

For engaging the legal relations between privates, the process of Right actualizing procedure must be fair. That is, a fair judgement would be made within the guarantee of self-pleading chances and speaking one's assertions in the process of pleading, interpretation and application of law founded on the justifiable principal of law. This pleading process institutes the rational suit with taking a one's assertion and collecting the corroborative facts which is based on the one's egoistic mind But in the present court, there are lots of cases which make a alternative conclusion on the trial due to the lack of legal knowledge or false examination. It makes people distrust the court and damage the people's belief about the legal emotion. Therefore the Civil Proceeding Acts 136 text 1 which is to make the lawsuit relation clear asks the legal and actual facts in the suit process, and text 4 confirms that give a chance to a person who have surly missed his speaking chances or connived over the legal facts at the court. But there are a lot of theories and disputes for this text on the interpretation and application. This paper is to find a way to conquest this shortcomings of principals of oral proceeding and, as a complement, the principal of explication for the fair suit. On the bases of this principals I will discuss about the CPA 136 text 1 and 4's legal natures. Also I'll discriminate whether we admit positive pleading duty relate to the range of the oral pleading, as a core of this dispute or not. At last, I'll analyse the legislation process of indication duty at the newly revised CPA in 1990, and the Deutch's debates over this principals. In the process of the suit, for understandng the ideology of the once settlement in dispute and concentrated inquiry, I'll analyse the pattern of indication and the interpretation of text on the legal point of view. And I'll catch the leading cases which the court positively leads the one's opinion expression at the beginning of the oral proceeding. In conclusion, this paper is to make up for the weak point of the principal of pleading rights, and to make clear the lawsuit relation with the purpose of this text, to study its legal character and the essential issue of the pleading right and indication duty approved to the rational lawsuit.

목차

Ⅰ. 머리말

Ⅱ. 공정한 재판을 위한 변론과 석명권

Ⅲ. 석명권에 관한 일반적 고찰

Ⅳ. 석명권의 범위(한계)

Ⅴ. 법률적 관점의 지적의무(통설, 판례를 중심으로)

Ⅵ. 맺음말

참고문헌

Abstract

키워드

변론주의 석명권 소극적 석명 적극적 석명 지적의무 시사의무 상고이유 The Principle of Pleading Eclaircissement Authority Passive Clarification Active Clarification the Obligation of Indication The Obligation of Implication The Grounds of an Appeal(to the Supreme Court)