민사소송법상 증거결정절차의 개선 방안

• 영문명: A Study on the Improvement of Ruling Procedures of Evidence in the Law of Civil Procedures
• 발행기관: 원광대학교 법학연구소
• 저자명: 김일룡(Kim, Il-Ryong)
• 간행물 정보: 『원광법학』제26권 제1호, 249~271쪽, 전체 22쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.03.30

영문 초록

In litigating family law cases before a jury, Anglo-American common law limits the evidence which is presentable to a jury. This procedural limitation derives from the desire to prevent the jury, which is composed of lay persons, of reaching an erroneous finding which is not based on the evidence presented. One of these evidentiary limitations is the concept of materiality. Materiality means that the evidence establishes or negates a substantive element of the law that is applicable in the lawsuit before the court. Accordingly, the judge will exclude evidence that is not material prior to its submission to the jury. Another evidentiary limitation that has developed in the common law is relevancy. This concept holds that only evidence that is probative, i.e. evidence that has an influence on the finding of facts which actually affects the outcome of the trial. A judge will exclude evidence according to this principle when the evidence has no influence on the outcome. These two principles of the common law were codified in the Federal Rules of Evidence in 1975 in order to ensure the impartiality and integrity of the judicial system. However, the two principles were combined into the single concept of relevancy. In other words, Section 401 of the Federal Rules of Evidence provides that “relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Scholars have described the section 401 relevancy requirement as a “natural relevancy” or “logical relevancy.” Additionally, section 403 of the Federal Rules of Evidence authorizes a judge to exclude relevant evidence on grounds of prejudice, confusion, or waste of time, and although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence, and, therefore, this rule is described as “legal relevancy” or “pragmatic relevancy.” Thus, the requirements for the submission of evidence that is either natural relevant or legal relevant to a jury should use relevant criteria. These requirements are generally applied loosely, but find clarification in the criteria used by the Court in admitting the evidence and in the rationale put forth in the objection by the party opposed to the admission of such evidence. Our legal system contains a possibility that a trial becomes substantially coarse due to this situation. There are also worries that the evidence offer rights and evidence objection rights are too perfunctory from the standpoint of the person concerned and can result in distrust of the judicial system by the common people. Accordingly, parties request evidence, and if a court judges and treats according to a relevancy criterion in a procedure that chooses the evidence, the person concerned tries to raise objections on preclusion or admissibility in order to get a guarantee of predictability on the lawfulness and appropriateness and, therefore, can substantially secure proof rights. If we introduce a relevancy concept separate from our concept of the admissibility of evidence, we can clarify the basis of this concept of admissibility of evidence as well as integrally understanding the regulations on the exclusion and admissibility of evidence that cannot be explained only with the admissibility of evidence and credibility. Thus we can attain logical reasoning in the law of evidence.

목차

Ⅰ. 서 론

Ⅱ. 현행 증거결정절차의 문제점

Ⅲ. 관련성 이론과 증거결정

Ⅳ. 증거결정체계의 재구성

Ⅴ. 결 론

참고문헌

Abstract

키워드

증거결정 필요성 미국연방증거규칙 증거배제 관련성 Ruling Procedure of Evidence Necessity Federal Rules of Evidence Exclusion of Evidence Relevancy