판결서의 증명력

• 영문명: PROBATIVE FORCE OF WRITTEN JUDGEMENTS AS EVIDENCE
• 발행기관: 한국민사소송법학회
• 저자명: 이태영(Lee Taeyoung)
• 간행물 정보: 『민사소송』제16권 제2호, 217~257쪽, 전체 41쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2012.11.30

영문 초록

A final judgment has res judicata effect only upon claims addressed by its dispositions but has no res judicata effect upon reasoning for the judgment. If the extent of res judicata effect is limited to claims included in dispositions of a judgment, it is impossible to avoid repeated relitigation based on the same facts in dispute, and distrust of the judiciary may be caused by inconsistent judgments on a prior claim and subsequent claims. Concerned over such problems, theoretical attempts have been continuously made to recognize the binding effect on reasoning for judgement. In connection with this problem, the Supreme Court of the Republic of Korea has accepted a written judgment as a written report presented to prove the facts accepted in the judgment and tends to recognize a strong probative force of a written judgment as evidence with regard to facts accepted in a final judgment. However, the tendency of such precedents involve many problems. Among facts accepted in a judgment, there are not only facts contested by parties and proved by evidence but also facts established by allocation of burden of proof or constructive admission, and thus it is necessary to separate such cases where facts are established by evidence from cases where facts are established by allocation of burden of proof or constructive admission. Since fact-finding in judgment has a nature of legal ruling, it is hard to accept a judgment as a report of facts. In addition, it is difficult to recognize the probative force of a written judgment as evidence in light of the structure of litigation or civil proceedings. Furthermore, a problem that the above-mentioned attitude towards precedents actually violates the principle of immediacy arises, since a written judgment is presented as evidence in a subsequent suit for trial with respect to matters already determined by the prior judgment. The res judicata effect affects only parties to a lawsuit. However, if the probative force of written judgments as evidence is recognized, it results in recognizing the binding effect of judgment on a prior lawsuit to third parties, who were non-parties, and thus it is likely to debilitate the principle of relativity of res judicata effect. Considering such problems, it is necessary to review the attitude of cases that recognize the probative force of written judgments as evidence and to pro-actively examine the collateral estoppel doctrine that Japan has adopted.

목차

Ⅰ. 들어가며

Ⅱ. 판결이유 중의 판단의 구속력

Ⅲ. 판결서의 증명력에 관한 대법원 판례의 태도

Ⅳ. 검토

Ⅴ. 결론

참고문헌

키워드

판결서의 증명력 분쟁의 일회적 해결 판결이유 중의 판단의 구속력 쟁점효 이론 보고문서 사실인정 probative force of written judgments as evidence one-time settlement of disputes binding effect upon reasoning for judgment collateral estoppel doctrine written report fact-finding