제1심과 항소심의 관계

• 영문명: The relationship between the first instance of court and the appeal court– Comparison with German and American appellate systems -
• 발행기관: 한국민사소송법학회
• 저자명: 강태원(KANG Taewon)
• 간행물 정보: 『민사소송』제21권 제1호, 261~308쪽, 전체 48쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2017.05.30

영문 초록

In commemmoration of 25th Anniversary of founding of Korea Association of the Law of Civil procedure, I presented the study of the relation between the first instance of court and the appeal court. About 20 years ago, the advisory committee for revision of Korean civil procedure recommended the limitation of submitting new materials in appeal court. I annalysed that the recommended limitation was not enough for that purpose and functioned not well, and researched the discussions about the theme in Germany, and suggested that the stricter limitation was needed to regulate it. But the law was not revised, and present law is same to that law of 20 years ago. From that time on, lots of professors and judges proposed the revision of law for the stricter restriction of submitting new materials similar to German civil procedure law. In this research, I also analysed the American appeal system. In U.S.A. the appeal court gives ‘de novo’ deference to the legal conclusion of the trial court, and ‘clear error’ deference to its fact-finding. And the appeal court gives ‘substantial evidence’ deference, and ‘abuse of discretion’ deference in reviewing the trial court’s decision. At last part of this research, it is showed that it is distinguished between adjudicative fact and legislative fact in America, and different standards of review are applied to each fact. But I analysed that the former is equal to fact, and the latter to law. So I suggest that the former should be treated as fact finding, and the latter as law conclusion in Korea. It shows that the distinction between fact-finding and legal conclusion is not easy both in U.S.A. and in Korea.

목차

Ⅰ. 머리말

Ⅱ. 우리 민사소송법 2002년 이전

Ⅲ. 2002년 독일 민사소송법의 개정

Ⅳ. 2002년 우리 민사소송법의 개정

Ⅴ. 미국 민사소송법

Ⅵ. 맺음말

키워드

심급제도 제1심법원 심리법원 제2심법원 항소법원 항소심 재심사 명백한 잘못 사실의 확정 사법적 사실 입법적 사실 불요증선언 appeals federal district court trial court federal circuit court of appeals court of appeal review of court of appeal clear error fact finding adjudicative fact legislative fact judicial notice