관련성이론의 개요와 그 적용영역

• 영문명: Introduction of the Relevancy Theory and its Implications to Korea
• 발행기관: 한국민사소송법학회
• 저자명: 김일룡(Kim, Il-Ryong)
• 간행물 정보: 『민사소송』제16권 제1호, 53~124쪽, 전체 72쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2012.05.30

영문 초록

The Relevancy theory was developed under Anglo–American legal system when it was enacted and became part of the Federal Rules of Evidence, but the need to introduce this theory in Korean judicial procedure is required in order to realize the objectives of reasonable, fair, prompt, and economic civil procedure system, to give order between rules with the theory. The fields that can develop de lege ferenda of interpretation theory by introducing the relevancy theory to Korean legal system are as below. First of all, through relevancy theory, one can stereotype individual regulation of evidence ejection with natural relevance and legal relevance; one can also understand necessity clauses of Civil Procedure Code article 290 as individual evidence ejectment clause; and at the same time, it can reach intramarginal limitations by limiting the scope of evidence that can be ejected. These operations allow a ground to clearly specify reasons of evidence ejectment on the decisions or protocols for hearing to substantially secure the objections on the evidence ejectment beyond intramarginal limitations. Second, when the adversary defends the authentication of documentary evidence through ignorance or denial, one can only converse the burden of proof by using the presumption of authentication clause under current Korean legal system when all ‘ignorance’ allegations cannot be solve through the burden of proof conversion. We need to codify the types of “self–authenticated” evidences as rule 902 of Federal Rules of Evidence defines; otherwise the court should cleary specify in the decide when eliminating admissions with binding force on authentication is an important foundation for fact–finding. Third, as for expert opinions of scientific or technical evidences, even under the circumstances when the authentication of identification are acknowledged, a separate procedure to probe its reliability is needed. The procedure is needed because even judges tend th label “errorless” on the expert opinions of evidences with the word ‘scientific’ or ‘technical’. Understanding these phenomena as substantial probative force of evidence under principle of free evaluation of proof, there is no way to prevent fact–finding through scientific or technical evidence from being distorted. Under Korean legal system, absence of clause like the rule 702 of Federal Rules of Evidence, exclusion of evidence should be allowed for scientific or technical evidences have possibilities to mislead or confuse facts. Lastly, the article 23 of the Civil Conciliation Act, which forbids quotations of the parties of a conciliation and the statements of the parties interested when the conciliation fails, indicates that the statements cannot be used as a confession or an evidence when they are submitted again in the latter judicial procedure. The article should be understood that the statements of the adversary party cannot only be accepted as preceding confession but also the parties cannot be interrogated in the examination form with the statement made during the conciliation. Such manner coincides with the rule 408 of Federal Rules of Evidence which excludes those statements for law relevance. Therefore, the conciliation reports should be very simple with the least information like the appearance but without any specific information; and statements of the both parties at the conciliation should not be reported and these statements cannot be added to the merit reports. Also the clause that directs the court which failed to manage the immediately directed conciliation to lead the merit should be deleted from the Civil Conciliation Act since the judge panel already knows about the facts from the conciliation which puts the limitation of the quoting preceding statements in the Civil Conciliation Act out of action and since the ‘Ruling of Recommendation of Compromise’ system was recently adopted in the Civil Procedure Code.

목차

Ⅰ. 머리말

Ⅱ. 미국연방증거규칙상의 관련성이론

Ⅲ. 관련성이론의 도입가능성과 적용영역

Ⅳ. 맺음말

참고문헌

키워드

관련성이론 증거결정 진정성립 과학적 증거 진술의 원용 제한 The Relevance Theory Evidence Determination Authentication Scientific Evidence Limiting the Quotation of the Statements