증거수집절차와 증거조사절차의 구별에 관한 시론

• 발행기관: 한국민사소송법학회
• 저자명: 박지원
• 간행물 정보: 『민사소송』제23권 제3호, 209~236쪽, 전체 28쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2019.10.30

영문 초록

Discussion on the distinction between evidence collection proceedings and evidence taking proceedings - To expand the scope of evidence collection Korean Civil Procedure Act does not distinguish between the evidence collection process and the evidence taking process. For example, the order to produce document is not an independent evidence collection procedure, but rather is defined as one of the methods for presenting documents at trial. The parties must therefore file an application for production of documents held by others in the same manner as if they had presented documents held by himself or herself to the court. Due to such a non-distinction, the relevancy requirement in determining the application of producing documents is interpreted as narrowly as in determining application of taking evidence. However, the relevancy at the evidence collection stage is different from that at the evidence taking stage. This is because, in the evidence collection stage, whether to collect evidence is based on its relevance to the case, and, in the evidence taking stage, whether to take evidence is based on its relevance to the issues. In addition, it seems that the formality required in the application to produce document is so strict that the effectiveness of the document collection process is compromised. I guess it is also because we are seeing this in the viewpoint of evidence taking. Therefore, the scope of evidence collection proceedings should be substantially expanded by distinguishing between evidence collection procedures and evidence taking procedures. In so doing, it would be advisable to acknowledge, as paradigm shift, that the party is the one who is the subject of the evidence collection proceedings, and to guarantee the party real chance of assessing the value of the collected evidences and select the best evidence which would support his case most.

목차

Ⅰ. 들어가며

Ⅱ. 증거수집절차의 현황

Ⅲ. 증거수집절차와 증거조사절차의 구별필요성

Ⅳ. 증거수집절차의 구별과 증거수집범위의 확대 - 패러다임의 변화

Ⅴ. 결론에 갈음하여

키워드

증거수집 증거개시 증거조사 모색적 증명 문서제출명령 evidence collection discovery evidence taking fishing expedition order to produce documents