소의 교환적 변경과 자백의 효력

• 영문명: Effect of an Exchange of Causes of Action and a Confession: Focusing on the Supreme Court's April 22, 1997 decision in No. 95DA10204
• 발행기관: 한국민사소송법학회
• 저자명: 최광선(Kwangsun Choi)
• 간행물 정보: 『민사소송』제28권 제1호, 223~260쪽, 전체 38쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2024.02.28

영문 초록

This case involved a confession by the defendant to the claims asserted by the plaintiff in the first action. The plaintiff filed a new complaint and dismissed the old complaint through an exchangeable change of claim. The key point of the judgment in this case was that the defendant's confession was extinguished by the plaintiff's withdrawal of the complaint. While the main legal reasoning of this case is reasonable, there are a few more points to consider. First, the concept of revocation of a confession should be replaced with the concept of lapse of a confession. In this case, the confessing individual is not extinguishing his confession for reasons that would otherwise be attributable to himself. The confession was extinguished because of the exchangeable change of claim, which should be viewed as an effect of lapse of confession. Second, if the confessor relied on the confession as a defense in a lawsuit before the exchangeable change of claim, it does not extinguish the prior trial confession. This is because the act of procedure has already been formed based on the trial confession and it is necessary to ensure legal stability. It is also noted that the opposite party's consent to the exchangeable change of claim does not include consent to the revocation of the confession, unless there are special circumstances.

목차

Ⅰ. 서론

Ⅱ. 재판상 자백에 대한 일반 법리 검토

Ⅲ. 이 사안과 관련된 쟁점 검토

Ⅳ. 결론

키워드

자백의 취소 소의 교환적 변경 간접사실 자백의 실효 자백의 구속력 revocation of confession exchangeable change of claim indirect evidence lapse of confession binding force of confession