민사소송의 사실인정과 증인신문기법(3판)(양장본 Hardcover)
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제3판에서는 인증신문 방법론에 중점을 두고 보충하였다. 아직까지 당사자주의 소송구조에 완전히 적응하지 못한 우리의 공판절차에서 가장 아쉬운 것이 증인신문 요령이기 때문이다. 형사법정은 물론이거니와 민사법정에서도 법정을 활기차게 하여 법관이 사실인정에 흥미를 가지고 실체적 진실을 발견하는데는 증인신문이 중심이 되어야 하고, 이를 위해서는 증인신문기법을 몸에 익히는 것이 시급하다. 법을 어긴 자에게 관용하는 사회는 결코 건강한 사회가 아니다. 법원은 사회적 평화가 깨어진 분쟁에서, 어느 쪽이 책임을 져야 할 것인지에 관하여, 기초가 되는 사실인정을 정확하고 신속하게 판단할 책무가 있다. 이를 위하여는 법률가는 서증의 정확한 분석은 물론이고, 증인을 제대로 신문하는 기법과 이를 판단할 수 있는 지혜를 갖추어야 한다. ① 개정판에서는 그중에서 특히 ‘반대신문’에 많은 비중을 두었다. 그런데 우리 법원에서 실제로 시행되고 있는 증인신문의 현실에서 볼 때, ‘주신문’이 차지하는 무게가 매우 크다는 점을 감안하여, 제3판에서는 이 부분에 대하여 미국의 법정기법에서 논의되는 유용한 신문기법을 소개하였다. 이는 반대신문에서도 이용될 수 있음은 물론이다. ② 또한 반대신문 중에서도 증인의 신빙성을 탄핵하는 신문기법을 보다 깊이 구체적으로 살펴보았다. 이는 사실인정론의 핵심과도 통하는 중요한 분야이다. ③ 법관의 보다 정확한 사실인정을 위하여 반드시 필요한 것이 전문가의 활용이다. 사회가 복잡하고 기술적이며 전문화된 시대를 맞아 운용이 더욱 확대되고 있는 전문가 증인의 효과적인 신문방법을 자세히 설명하였다. ④ 그리고 당사자주의와 교호신문제도를 정착하기 위한 기초적인 장치인, 공판절차에서 이의(objection)를 활성화하기 위하여 구체적인 이의사례와 대처방법을 추가하였다. ⑤ 최종변론은 배심제를 채택하는 영미법 국가에서는 배심평결을 앞두고 배심을 설득할 수 있는 변호사의 마지막 기회로서 매우 중요한 의미를 가진다. 우리나라에서는 직업법관제를 채택하고 있고, 심리가 주로 준비서면과 서증을 비롯한 서면을 중심으로는 진행되었으므로, 과거에는 민사소송에서 최종변론을 하는 경우가 드물었다. 그러나 이제는 공판중심주의가 활성화되면서 영미와 같은 수준은 아니지만, 최종변론을 하는 것이 일반적인 현상이다. 당사자주의와 공판중심주의 아래서는 당사자가 중심이 되어 법정에서 사안의 실체적 진실을 밝혀나가야 한다. 그렇게 함으로써 법정을 생기있게 하고, 국민에게 알기 쉬운 법정이 됨으로써, 사법 불신을 제거할 수 있는 좋은 계기가 될 수 있다.
따라서 사실인정과 법률적용에 관한 마지막 결론을 당사자가 주도할 수 있는 최종변론은
이를 활성화할 필요가 있다. 그래서 최종변론에 관한 항목을 추가하였다.
따라서 사실인정과 법률적용에 관한 마지막 결론을 당사자가 주도할 수 있는 최종변론은
이를 활성화할 필요가 있다. 그래서 최종변론에 관한 항목을 추가하였다.
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제1장 서 설
제1절 사실인정을 둘러싼 법관의 고뇌와 노력······························································3
제2절 소송상 사실인정의 성질···················································································7
Ⅰ. 역사적 史實과의 관계··································································7
Ⅱ. 과학적 진실과의 관계··································································9
Ⅲ. 뉴스보도 및 평론과의 관계·························································10
Ⅳ. 요 약·····················································································12
제3절 사실인정과 관련된 심리학적 문제점································································ 14
Ⅰ. 휴리스틱(heuristics)·····································································14
1. 개 요················································································· 14
2. 可用性 휴리스틱(回想 용이성 휴리스틱)········································14
3. 대표성 휴리스틱(representativeness heuristic)································ 15
4. 기준점과 조정(anchoring and adjustment) 휴리스틱······················ 16
5. 감정 휴리스틱(affect heuristic)·················································· 17
6. 라벨링(labelling)····································································· 18
Ⅱ. 편 향·····················································································19
1. 뜻······················································································· 19
2. 종 류················································································· 20
가. 기억 관련 편향 / 20 나. 사회적 편향 / 23
다.인지적?행동적 편향 / 28 라. 학술활동상의 편향들 / 36
제4절 사실인정과 관련된 언어적 문제점·············································· 40
Ⅰ. 법과 언어의 관계······································································ 40
Ⅱ. 법언어학상의 유의점··································································41
1. 일상용어의 사용법과 괴리된 법률용어······································ 41
2. 언어의 주체··········································································42
3. 재판과 지역사투리·································································43
4. 사법통역·············································································· 43
5. 언어에 대한 오해·································································· 44
6. 언어행위의 해석····································································45
7. 상대방 배려와 언어사용························································· 46
8. 언어생활법칙과 위증······························································47
9. 말이 기억에 미치는 영향 - 말이 기억을 바꿀 수 있다················ 49
가. Lofus의 실험 / 49 나. 기억의 구조 / 50
다. 목격증언의 기억의 변용 - 라인업(line-up) 질문 / 51
Ⅲ. 번역의 문제 - 영문계약서를 중심으로·········································· 52
1. 법률문서 번역의 장벽···························································· 52
가. 법률용어의 특징 / 52
나. 법체계의 차이와 법률용어 의미의 차이 / 53
다. 영문법률용어의 특수성 / 55
2. 영문계약서 문례····································································56
가. 계약의 명칭 / 56 나. 구 문 / 57
다. 예문 중에 있는 영문계약서에 특유한 표현 / 57
3. 영문계약서의 번역을 어렵게 하는 특유의 용어나 표현················60
가. 조동사 / 60 나. 때(時)를 표시하는 전치사?부사 / 63
다. 그 밖의 문제 / 65
4. 결 론················································································· 66
Ⅳ. 우리 법률언어의 문제점····························································· 67
1. 서 론················································································· 67
가. 법률언어와 일상용어의 관계 / 67
나.일본어의 영향 / 68 다. 알기 어려운 표현 / 69
2. 민법전 제정과정과 법률용어··················································· 70
가. 의 미 / 70 나. 독일민법전 / 71
다. 일본민법전 / 72 라. 우리 민법전의 제정과 개정 작업 / 74
3. 구체적인 사례·······································································78
4. 결 론················································································· 96
제5절 재판의 전문성과 비전문성························································ 97
Ⅰ. 절차형성과 실체형성··································································97
Ⅱ. 전문가와 비전문가의 영역·························································· 98
Ⅲ. 판단의 2가지 형태···································································· 98
Ⅳ. 국민의 재판참여 방식에 관한 제언············································ 100
제6절 증거 이외에 사실인정에 영향을 미치는 요인···················································101
Ⅰ. 문제의 소재············································································101
Ⅱ. 사실인정의 창조적 작용··························································· 103
1. 사실인정과 판단·································································· 103
2. 사실의 채부········································································ 105
3. 의도적 인정········································································ 108
Ⅲ. 변론전체의 취지······································································108
1. 의미와 연혁········································································ 108
가. 의 미 / 108 나. 연 혁 / 110
2. 변론전체의 취지만으로 하는 사실인정···································· 110
3. 판결이유의 표현·································································· 111
4. 화해와 변론전체의 취지························································112
Ⅳ. 구체적 타당성·········································································112
1. 사실(의사)의 해석·································································113
2. 결론과 조정기능(feed back)····················································114
3. 법적용과 조정기능(feed back)·················································117
Ⅴ. 소송의 경과와 법관의 심증개시·················································119
1. 소송경과·············································································119
2. 심증의 개시········································································ 121
Ⅵ. 관련사건의 결과······································································123
Ⅶ. 그 판결이 가져올 영향·····························································125
1. 개인적 영향········································································ 125
2. 사회적 영향········································································ 132
Ⅷ. 사실인정과 의욕(desire)·····························································133
Ⅸ. 판결이유가 사실인정에 미치는 영향···········································136
Ⅹ. 결 론··················································································· 138
제2장 민사소송의 사실인정
제1절 민사소송에서 사실인정의 특징······································································ 144
Ⅰ. 직권증거조사의 원칙적 금지····················································· 144
Ⅱ. 증명의 대상이 되는 사실의 한정··············································· 144
Ⅲ. 증거조사의 종류?방법의 한정····················································145
Ⅳ. 수사과정과 민사재판과정에서 사실인정의 차이····························145
제2절 사실인정의 대상이 되는 사실의 확정····························································· 146
Ⅰ. 확정해야 할 「사실」································································· 146
1. 사실과 평가········································································ 146
2. 사안의 성질에 따른 판단의 필요성·········································149
Ⅱ. 사실인정의 대상이 되는 사실(쟁점)·············································152
1. 요건사실(Haupttatsache)과 간접사실(indirekte Tatsache)················ 152
2. 요건사실의 구체성······························································· 154
가. 구체성의 문제 / 154 나. 요건사실의 특정 / 155
다. 특정과 구체성의 정도 / 155
Ⅲ. 쟁점 사실의 확정방법······························································ 155
제3절 증거로부터 사실을 인정하는 판단구조····························································157
Ⅰ. 처음에··················································································· 157
1. 직접증거에 의한 사실인정과 간접증거에 의한 사실인정············ 157
2. 증거력(Beweiswert)의 문제····················································· 158
3. 서증(Urkundenbeweis)과 人證(인적증거; Personalbeweis)의 특징······ 158
4. 서증의 중요성과 경험칙과의 관계·········································· 159
Ⅱ. 서증(Urkundenbeweis)의 경우····················································· 160
1. 서증의 종류와 형식적 증거력················································ 160
가. 서증의 종류 / 160 나. 형식적 증거력 / 161
다. 위조문서의 경우 / 161 라. 검증물로서의 성질 / 162
2. 처분문서(Dispositivurkunde)의 경우···········································162
가. 처분문서의 특징 / 162 나. 불완전한 문서의 경우 / 163
다. 차용증서의 경우 / 163 라. 의사표시 도달의 문제 / 164
3. 보고문서(Berichtsurkunde)의 경우·············································164
가. 보고문서의 실질적 증거력 / 164
나. 실질적 증거력이 높은 보고문서 / 165
다. 실질적 증거력이 낮은 보고문서 / 165
라. 보고문서의 신빙성 검토를 위한 자료 / 166
Ⅲ. 증언의 경우············································································166
1. 증언에 의한 사실인정의 기본적 구조······································166
가. 사 례 / 166 나. 기본적인 판단구조 / 166
2. 증언의 의미에 대한 검토······················································ 167
가. 말의 의미 / 167 나. 사실과 평가 / 167
Ⅳ. 움직이기 어려운 사실과 주장사실의 합리성································ 170
1. 사실인정의 방식·································································· 170
2. 사실의 주장과 합리성 판단··················································· 171
가. 합리성의 검토 / 171
나. 「불합리」와 「있을 수 없다」는 개념의 차이 / 171
다. 주장의 합리성과 사실인정 절차 / 171
라. 경험칙과 폭 넓은 상식 / 172
제4절 간접사실로부터 요건사실을 추인하는 판단구조················································173
Ⅰ. 증거에 의한 인정과 간접사실에 의한 추인의 관계······················· 173
1. 직접증거에 의한 인정과 간접사실에 의한 인정(추인)················· 173
가. 둘 사이의 관계 / 173
나. 간접사실로 요건사실을 추인할 수 있는 사례 / 174
다. 추인의 확실성에 관하여 / 175
2. 유 의 점·············································································175
Ⅱ. 간접사실에 의한 요건사실의 추인 방법······································ 176
1. 총 론················································································176
2. 구체적인 예········································································ 177
가. 사 례 / 177 나. 개별적인 인간의 행동법칙 / 179
다. 다양한 접근방법의 고려 / 180
제5절 전체상의 파악···························································································· 181
Ⅰ. 나무와 숲을 함께 볼 것··························································· 181
Ⅱ. 時系列表(timeline)·····································································181
Ⅲ. 도식화(diagram)······································································· 182
Ⅳ. 역사적 서술방식······································································182
1. 역사적 서술방식의 도입························································182
2. 역사적 서술방식의 유의점·····················································183
3. 쟁점별 판단방식의 유의점·····················································184
제6절 사실인정의 정확도를 향상시키기 위한 유의점················································· 185
Ⅰ. 움직이기 어려운 사실(간접사실)의 충분한 파악·····························185
1. 기록의 정독········································································ 185
가. 다툼이 없는 사실의 파악 / 185 나. 서증의 파악 / 185
2. 충실한 쟁점 정리·································································186
3. 상 상 력·············································································187
Ⅱ. 증거조사 방식의 연구······························································ 187
Ⅲ. 겸허함의 힘············································································188
Ⅳ. 동료 등과의 논의···································································· 189
Ⅴ. 경험칙에는 언제나 예외가 수반된다는 인식································ 189
제7절 사실인정과 관련된 몇 가지 개념··································································· 190
Ⅰ. 증 명 도················································································ 190
1. 머 리 말·············································································190
가. 의 의 / 190 나. 증명도의 단계 / 190
2. 우리나라 재판에서 증명도의 의미·········································· 192
가. 대륙법계의 전통 / 192 나. 우리나라 재판에서 증명의 정도 / 195
3. 그 밖의 문제·······································································200
가. 법관의 주관적 확신에 대해 / 200
나. 간접사실 증명의 정도 / 201
다. 가사, 행정 소송의 증명도 / 203
Ⅱ. 경 험 칙················································································ 204
1. 뜻····················································································· 204
가. 경험칙이란 / 204 나. 예컨대, / 205
다. 개연성의 문제 / 205
2. 경험칙의 증명····································································· 205
3. 경험칙의 체계화·································································· 206
가. 경험칙 체계화의 중요성과 방법 / 206
나. 강학상의 체계에 따른 분류 / 207
다. 인간 행동양식에 따른 분류 / 226
Ⅲ. 추 정··················································································· 230
1. 법률상의 사실추정······························································· 230
2. 법률상의 권리추정······························································· 230
3. 사실상의 추정····································································· 230
4. 해석규정·············································································231
5. 잠정진실·············································································231
6. 법정증거법칙·······································································231
제8절 각종 증거방법의 증거력···············································································232
Ⅰ. 처음에··················································································· 232
1. 증거방법의 특성에 따른 증거력 평가······································232
2. 검토의 순서········································································ 232
Ⅱ. 서 증··················································································· 233
1. 민사소송의 사실인정에서 서증의 위상···································· 233
가. 서증의 장점 / 233 나. 실질적인 판단의 중요성 / 233
다. 「점」과 「선」의 역할 / 234 라. 서증의 유형별 검토 / 234
2. 문서의 종류········································································ 235
가. 총 론 / 235 나. 공문서?사문서 / 240
다. 처분문서?보고문서 / 242 라. 원본?정본?등본?초본 / 245
3. 문서(서증)의 증거능력과 증거력(증명력, 증거가치)······················· 248
가. 증거능력 / 248
나. 증거력(증명력 Beweiskraft, 증거가치 Beweiswert) / 249
4. 문서성립의 진정(형식적 증거력)··············································· 250
가. 문서성립 진정의 뜻 / 250 나. 문서의 작성자 / 251
다. 거증자가 문서 작성자를 특정해야 하는가 / 253
라. 거증자가 특정한 작성자가 아닌 다른 사람이 작성한 것으로 인정된 서증을 증거로 사용할
수 있을 것인가-문서 작성자에 관한 당사자의 주장과 인정의 교차 및 판단 시의 유의점 /
256
마. 문서성립 진정의 인정(1)~문서성립의 추정 / 259
바. 문서의 진정성립 인정(2)~반증 등 / 264
사. 문서성립의 진정 인정(3)~문서의 성립에 대한 상대방의 認否 및 자백의 구속력 / 279
5. 서증의 실질적 증거력···························································283
가. 서증의 실질적 증거력의 개념 / 283
나. 서증에 관한 실질적 증거력 판단의 모습 / 284
6. 서증을 검토할 때 실무상의 유의점·········································300
가. 원본의 확인 / 300
나. 서증 자체의 물리적 측면의 검토 / 302
다. 서증의 작성 시기와 관련된 검토 / 304
라. 서증의 내용을 음미하는 관점 / 306
Ⅲ. 인 증··················································································· 307
1. 처음에················································································307
2. 증인의 증언과 당사자 본인의 진술·········································307
3. 증언의 신빙성의 검토방법·····················································308
가. 처음에 / 308
나. 평가 근거의 검토 / 309
다. 증인 자체에 관한 검토-사실의 인식에 대해 / 309
라. 증언내용과 경험칙 / 317
마. 증언내용과 그 사건에서 「움직일 수 없는 사실」 / 320
Ⅳ. 감 정(Gutachten, expert evidence)···············································326
1. 증거조사로서 감정의 개념·····················································326
2. 감정의 대상········································································ 326
3. 감정과 자유심증·································································· 334
제9절 계약유형에 따른 사례분석············································································ 335
Ⅰ. 처음에··················································································· 335
1. 분석대상·············································································335
2. 계약의 성립········································································ 335
가. 계약의 성립여부 / 335 나. 계약체결의 과정 / 339
Ⅱ. 보증계약의 성립여부································································340
1. 처음에················································································340
2. 보증계약의 특색 및 문제점··················································· 341
가. 보증계약의 특색 / 341 나. 거래의 현실 / 341
다. 소송상 유의점 / 342
3. 보증계약의 성립 문제는 소송에서 어떠한 형태로 다투어지나·····342
4. 보증계약의 성립여부를 판단할 때 고려해야 할 사실·················343
가. 처음에 / 343
나. 당사자 간에 서면이 존재하는 경우 / 343
다. 당사자 사이에 서면이 존재하지 않는 경우 / 345
5. 참고 판례··········································································· 348
가. 보증인이 보증계약서(보증문언이 명확한 증서)에 서명?날인한 경우 / 348
나. 당사자 사이에 주고받은 서면에 명확한 보증문언이 없고, 그 밖의 문언이
있는 경우 / 350
다. 당사자 사이에 서면이 존재하지 않는 경우 / 359
6. 민사보증과 어음보증···························································· 361
가. 문제의 소재 / 361 나. 두 가지 판례 / 362
다. 검 토 / 364
Ⅲ. 매매계약의 성립여부································································365
1. 처음에················································································365
2. 매매계약의 성립여부···························································· 366
가. 매매계약 성립 인정 시에 고려해야 할 사실 / 366
나. 참고 판례 / 367
3. 대금이 확정되지 않은 매매계약의 성립여부·····························372
가. 처음에 / 372 나. '시가'와 매매계약의 성립여부 / 372
다. 참고 판례 / 373
4. 매매의 목적물····································································· 373
가. 매매 목적물을 인정할 때 고려해야 할 사실 / 373
나. 참고 판례 / 374
5. 매매의 당사자····································································· 376
가. 매매 당사자를 인정할 때 고려해야 할 사실 / 376
나. 참고 판례 / 377
Ⅳ. 소비대차계약의 성립여부··························································380
1. 처음에················································································380
2. 소비대차의 성립 여부를 판단할 때 고려해야 할 사실··············· 380
가. 차용증서의 존부 / 380 나. 실무상의 쟁점 / 381
3. 참고 판례··········································································· 385
가. 백미의 형식을 빌린 금전소비대차 / 385
나. 금전소비대차의 차용인인지 알선자인지 문제가 된 사례 / 385
다. 사인(私人)간의 어음?수표할인의 성격 / 386
라. 보험약관대출의 성격 / 387
4. 소비대차의 당사자······························································· 389
가. 소비대차 당사자를 인정할 때 고려해야 할 사실 / 389
나. 참고 판례 / 390
5. 변 제················································································392
가. 처음에 / 392
나. 변제 유무를 인정할 때 고려해야 할 사실 / 392
제10절 상소심 법관들의 사실인정에 관한 조언························································ 394
1. 의문 나는 점을 우선 '당사자'에게 물어볼 것··························394
2. 서증의 성립만으로 결론을 도출하지 말 것·····························394
3. 2단의 추정을 성급하게 사용하지 말 것·································395
4. 서증이 없는 경우······························································· 396
5. 문제 있는 판결문 설시의 예················································ 396
6. 당사자 주장의 사전 조정·····················································397
7. 증거의 종합판단·································································397
8. 진 술 서··········································································· 398
9. 큰 줄거리의 파악······························································· 398
10. 사실인정에서 배경과 경위, 인과관계 등의 중요성···················398
11. 집중심리
제1장 서 설
제1절 사실인정을 둘러싼 법관의 고뇌와 노력······························································3
제2절 소송상 사실인정의 성질···················································································7
Ⅰ. 역사적 史實과의 관계··································································7
Ⅱ. 과학적 진실과의 관계··································································9
Ⅲ. 뉴스보도 및 평론과의 관계·························································10
Ⅳ. 요 약·····················································································12
제3절 사실인정과 관련된 심리학적 문제점································································ 14
Ⅰ. 휴리스틱(heuristics)·····································································14
1. 개 요················································································· 14
2. 可用性 휴리스틱(回想 용이성 휴리스틱)········································14
3. 대표성 휴리스틱(representativeness heuristic)································ 15
4. 기준점과 조정(anchoring and adjustment) 휴리스틱······················ 16
5. 감정 휴리스틱(affect heuristic)·················································· 17
6. 라벨링(labelling)····································································· 18
Ⅱ. 편 향·····················································································19
1. 뜻······················································································· 19
2. 종 류················································································· 20
가. 기억 관련 편향 / 20 나. 사회적 편향 / 23
다.인지적?행동적 편향 / 28 라. 학술활동상의 편향들 / 36
제4절 사실인정과 관련된 언어적 문제점·············································· 40
Ⅰ. 법과 언어의 관계······································································ 40
Ⅱ. 법언어학상의 유의점··································································41
1. 일상용어의 사용법과 괴리된 법률용어······································ 41
2. 언어의 주체··········································································42
3. 재판과 지역사투리·································································43
4. 사법통역·············································································· 43
5. 언어에 대한 오해·································································· 44
6. 언어행위의 해석····································································45
7. 상대방 배려와 언어사용························································· 46
8. 언어생활법칙과 위증······························································47
9. 말이 기억에 미치는 영향 - 말이 기억을 바꿀 수 있다················ 49
가. Lofus의 실험 / 49 나. 기억의 구조 / 50
다. 목격증언의 기억의 변용 - 라인업(line-up) 질문 / 51
Ⅲ. 번역의 문제 - 영문계약서를 중심으로·········································· 52
1. 법률문서 번역의 장벽···························································· 52
가. 법률용어의 특징 / 52
나. 법체계의 차이와 법률용어 의미의 차이 / 53
다. 영문법률용어의 특수성 / 55
2. 영문계약서 문례····································································56
가. 계약의 명칭 / 56 나. 구 문 / 57
다. 예문 중에 있는 영문계약서에 특유한 표현 / 57
3. 영문계약서의 번역을 어렵게 하는 특유의 용어나 표현················60
가. 조동사 / 60 나. 때(時)를 표시하는 전치사?부사 / 63
다. 그 밖의 문제 / 65
4. 결 론················································································· 66
Ⅳ. 우리 법률언어의 문제점····························································· 67
1. 서 론················································································· 67
가. 법률언어와 일상용어의 관계 / 67
나.일본어의 영향 / 68 다. 알기 어려운 표현 / 69
2. 민법전 제정과정과 법률용어··················································· 70
가. 의 미 / 70 나. 독일민법전 / 71
다. 일본민법전 / 72 라. 우리 민법전의 제정과 개정 작업 / 74
3. 구체적인 사례·······································································78
4. 결 론················································································· 96
제5절 재판의 전문성과 비전문성························································ 97
Ⅰ. 절차형성과 실체형성··································································97
Ⅱ. 전문가와 비전문가의 영역·························································· 98
Ⅲ. 판단의 2가지 형태···································································· 98
Ⅳ. 국민의 재판참여 방식에 관한 제언············································ 100
제6절 증거 이외에 사실인정에 영향을 미치는 요인···················································101
Ⅰ. 문제의 소재············································································101
Ⅱ. 사실인정의 창조적 작용··························································· 103
1. 사실인정과 판단·································································· 103
2. 사실의 채부········································································ 105
3. 의도적 인정········································································ 108
Ⅲ. 변론전체의 취지······································································108
1. 의미와 연혁········································································ 108
가. 의 미 / 108 나. 연 혁 / 110
2. 변론전체의 취지만으로 하는 사실인정···································· 110
3. 판결이유의 표현·································································· 111
4. 화해와 변론전체의 취지························································112
Ⅳ. 구체적 타당성·········································································112
1. 사실(의사)의 해석·································································113
2. 결론과 조정기능(feed back)····················································114
3. 법적용과 조정기능(feed back)·················································117
Ⅴ. 소송의 경과와 법관의 심증개시·················································119
1. 소송경과·············································································119
2. 심증의 개시········································································ 121
Ⅵ. 관련사건의 결과······································································123
Ⅶ. 그 판결이 가져올 영향·····························································125
1. 개인적 영향········································································ 125
2. 사회적 영향········································································ 132
Ⅷ. 사실인정과 의욕(desire)·····························································133
Ⅸ. 판결이유가 사실인정에 미치는 영향···········································136
Ⅹ. 결 론··················································································· 138
제2장 민사소송의 사실인정
제1절 민사소송에서 사실인정의 특징······································································ 144
Ⅰ. 직권증거조사의 원칙적 금지····················································· 144
Ⅱ. 증명의 대상이 되는 사실의 한정··············································· 144
Ⅲ. 증거조사의 종류?방법의 한정····················································145
Ⅳ. 수사과정과 민사재판과정에서 사실인정의 차이····························145
제2절 사실인정의 대상이 되는 사실의 확정····························································· 146
Ⅰ. 확정해야 할 「사실」································································· 146
1. 사실과 평가········································································ 146
2. 사안의 성질에 따른 판단의 필요성·········································149
Ⅱ. 사실인정의 대상이 되는 사실(쟁점)·············································152
1. 요건사실(Haupttatsache)과 간접사실(indirekte Tatsache)················ 152
2. 요건사실의 구체성······························································· 154
가. 구체성의 문제 / 154 나. 요건사실의 특정 / 155
다. 특정과 구체성의 정도 / 155
Ⅲ. 쟁점 사실의 확정방법······························································ 155
제3절 증거로부터 사실을 인정하는 판단구조····························································157
Ⅰ. 처음에··················································································· 157
1. 직접증거에 의한 사실인정과 간접증거에 의한 사실인정············ 157
2. 증거력(Beweiswert)의 문제····················································· 158
3. 서증(Urkundenbeweis)과 人證(인적증거; Personalbeweis)의 특징······ 158
4. 서증의 중요성과 경험칙과의 관계·········································· 159
Ⅱ. 서증(Urkundenbeweis)의 경우····················································· 160
1. 서증의 종류와 형식적 증거력················································ 160
가. 서증의 종류 / 160 나. 형식적 증거력 / 161
다. 위조문서의 경우 / 161 라. 검증물로서의 성질 / 162
2. 처분문서(Dispositivurkunde)의 경우···········································162
가. 처분문서의 특징 / 162 나. 불완전한 문서의 경우 / 163
다. 차용증서의 경우 / 163 라. 의사표시 도달의 문제 / 164
3. 보고문서(Berichtsurkunde)의 경우·············································164
가. 보고문서의 실질적 증거력 / 164
나. 실질적 증거력이 높은 보고문서 / 165
다. 실질적 증거력이 낮은 보고문서 / 165
라. 보고문서의 신빙성 검토를 위한 자료 / 166
Ⅲ. 증언의 경우············································································166
1. 증언에 의한 사실인정의 기본적 구조······································166
가. 사 례 / 166 나. 기본적인 판단구조 / 166
2. 증언의 의미에 대한 검토······················································ 167
가. 말의 의미 / 167 나. 사실과 평가 / 167
Ⅳ. 움직이기 어려운 사실과 주장사실의 합리성································ 170
1. 사실인정의 방식·································································· 170
2. 사실의 주장과 합리성 판단··················································· 171
가. 합리성의 검토 / 171
나. 「불합리」와 「있을 수 없다」는 개념의 차이 / 171
다. 주장의 합리성과 사실인정 절차 / 171
라. 경험칙과 폭 넓은 상식 / 172
제4절 간접사실로부터 요건사실을 추인하는 판단구조················································173
Ⅰ. 증거에 의한 인정과 간접사실에 의한 추인의 관계······················· 173
1. 직접증거에 의한 인정과 간접사실에 의한 인정(추인)················· 173
가. 둘 사이의 관계 / 173
나. 간접사실로 요건사실을 추인할 수 있는 사례 / 174
다. 추인의 확실성에 관하여 / 175
2. 유 의 점·············································································175
Ⅱ. 간접사실에 의한 요건사실의 추인 방법······································ 176
1. 총 론················································································176
2. 구체적인 예········································································ 177
가. 사 례 / 177 나. 개별적인 인간의 행동법칙 / 179
다. 다양한 접근방법의 고려 / 180
제5절 전체상의 파악···························································································· 181
Ⅰ. 나무와 숲을 함께 볼 것··························································· 181
Ⅱ. 時系列表(timeline)·····································································181
Ⅲ. 도식화(diagram)······································································· 182
Ⅳ. 역사적 서술방식······································································182
1. 역사적 서술방식의 도입························································182
2. 역사적 서술방식의 유의점·····················································183
3. 쟁점별 판단방식의 유의점·····················································184
제6절 사실인정의 정확도를 향상시키기 위한 유의점················································· 185
Ⅰ. 움직이기 어려운 사실(간접사실)의 충분한 파악·····························185
1. 기록의 정독········································································ 185
가. 다툼이 없는 사실의 파악 / 185 나. 서증의 파악 / 185
2. 충실한 쟁점 정리·································································186
3. 상 상 력·············································································187
Ⅱ. 증거조사 방식의 연구······························································ 187
Ⅲ. 겸허함의 힘············································································188
Ⅳ. 동료 등과의 논의···································································· 189
Ⅴ. 경험칙에는 언제나 예외가 수반된다는 인식································ 189
제7절 사실인정과 관련된 몇 가지 개념··································································· 190
Ⅰ. 증 명 도················································································ 190
1. 머 리 말·············································································190
가. 의 의 / 190 나. 증명도의 단계 / 190
2. 우리나라 재판에서 증명도의 의미·········································· 192
가. 대륙법계의 전통 / 192 나. 우리나라 재판에서 증명의 정도 / 195
3. 그 밖의 문제·······································································200
가. 법관의 주관적 확신에 대해 / 200
나. 간접사실 증명의 정도 / 201
다. 가사, 행정 소송의 증명도 / 203
Ⅱ. 경 험 칙················································································ 204
1. 뜻····················································································· 204
가. 경험칙이란 / 204 나. 예컨대, / 205
다. 개연성의 문제 / 205
2. 경험칙의 증명····································································· 205
3. 경험칙의 체계화·································································· 206
가. 경험칙 체계화의 중요성과 방법 / 206
나. 강학상의 체계에 따른 분류 / 207
다. 인간 행동양식에 따른 분류 / 226
Ⅲ. 추 정··················································································· 230
1. 법률상의 사실추정······························································· 230
2. 법률상의 권리추정······························································· 230
3. 사실상의 추정····································································· 230
4. 해석규정·············································································231
5. 잠정진실·············································································231
6. 법정증거법칙·······································································231
제8절 각종 증거방법의 증거력···············································································232
Ⅰ. 처음에··················································································· 232
1. 증거방법의 특성에 따른 증거력 평가······································232
2. 검토의 순서········································································ 232
Ⅱ. 서 증··················································································· 233
1. 민사소송의 사실인정에서 서증의 위상···································· 233
가. 서증의 장점 / 233 나. 실질적인 판단의 중요성 / 233
다. 「점」과 「선」의 역할 / 234 라. 서증의 유형별 검토 / 234
2. 문서의 종류········································································ 235
가. 총 론 / 235 나. 공문서?사문서 / 240
다. 처분문서?보고문서 / 242 라. 원본?정본?등본?초본 / 245
3. 문서(서증)의 증거능력과 증거력(증명력, 증거가치)······················· 248
가. 증거능력 / 248
나. 증거력(증명력 Beweiskraft, 증거가치 Beweiswert) / 249
4. 문서성립의 진정(형식적 증거력)··············································· 250
가. 문서성립 진정의 뜻 / 250 나. 문서의 작성자 / 251
다. 거증자가 문서 작성자를 특정해야 하는가 / 253
라. 거증자가 특정한 작성자가 아닌 다른 사람이 작성한 것으로 인정된 서증을 증거로 사용할
수 있을 것인가-문서 작성자에 관한 당사자의 주장과 인정의 교차 및 판단 시의 유의점 /
256
마. 문서성립 진정의 인정(1)~문서성립의 추정 / 259
바. 문서의 진정성립 인정(2)~반증 등 / 264
사. 문서성립의 진정 인정(3)~문서의 성립에 대한 상대방의 認否 및 자백의 구속력 / 279
5. 서증의 실질적 증거력···························································283
가. 서증의 실질적 증거력의 개념 / 283
나. 서증에 관한 실질적 증거력 판단의 모습 / 284
6. 서증을 검토할 때 실무상의 유의점·········································300
가. 원본의 확인 / 300
나. 서증 자체의 물리적 측면의 검토 / 302
다. 서증의 작성 시기와 관련된 검토 / 304
라. 서증의 내용을 음미하는 관점 / 306
Ⅲ. 인 증··················································································· 307
1. 처음에················································································307
2. 증인의 증언과 당사자 본인의 진술·········································307
3. 증언의 신빙성의 검토방법·····················································308
가. 처음에 / 308
나. 평가 근거의 검토 / 309
다. 증인 자체에 관한 검토-사실의 인식에 대해 / 309
라. 증언내용과 경험칙 / 317
마. 증언내용과 그 사건에서 「움직일 수 없는 사실」 / 320
Ⅳ. 감 정(Gutachten, expert evidence)···············································326
1. 증거조사로서 감정의 개념·····················································326
2. 감정의 대상········································································ 326
3. 감정과 자유심증·································································· 334
제9절 계약유형에 따른 사례분석············································································ 335
Ⅰ. 처음에··················································································· 335
1. 분석대상·············································································335
2. 계약의 성립········································································ 335
가. 계약의 성립여부 / 335 나. 계약체결의 과정 / 339
Ⅱ. 보증계약의 성립여부································································340
1. 처음에················································································340
2. 보증계약의 특색 및 문제점··················································· 341
가. 보증계약의 특색 / 341 나. 거래의 현실 / 341
다. 소송상 유의점 / 342
3. 보증계약의 성립 문제는 소송에서 어떠한 형태로 다투어지나·····342
4. 보증계약의 성립여부를 판단할 때 고려해야 할 사실·················343
가. 처음에 / 343
나. 당사자 간에 서면이 존재하는 경우 / 343
다. 당사자 사이에 서면이 존재하지 않는 경우 / 345
5. 참고 판례··········································································· 348
가. 보증인이 보증계약서(보증문언이 명확한 증서)에 서명?날인한 경우 / 348
나. 당사자 사이에 주고받은 서면에 명확한 보증문언이 없고, 그 밖의 문언이
있는 경우 / 350
다. 당사자 사이에 서면이 존재하지 않는 경우 / 359
6. 민사보증과 어음보증···························································· 361
가. 문제의 소재 / 361 나. 두 가지 판례 / 362
다. 검 토 / 364
Ⅲ. 매매계약의 성립여부································································365
1. 처음에················································································365
2. 매매계약의 성립여부···························································· 366
가. 매매계약 성립 인정 시에 고려해야 할 사실 / 366
나. 참고 판례 / 367
3. 대금이 확정되지 않은 매매계약의 성립여부·····························372
가. 처음에 / 372 나. '시가'와 매매계약의 성립여부 / 372
다. 참고 판례 / 373
4. 매매의 목적물····································································· 373
가. 매매 목적물을 인정할 때 고려해야 할 사실 / 373
나. 참고 판례 / 374
5. 매매의 당사자····································································· 376
가. 매매 당사자를 인정할 때 고려해야 할 사실 / 376
나. 참고 판례 / 377
Ⅳ. 소비대차계약의 성립여부··························································380
1. 처음에················································································380
2. 소비대차의 성립 여부를 판단할 때 고려해야 할 사실··············· 380
가. 차용증서의 존부 / 380 나. 실무상의 쟁점 / 381
3. 참고 판례··········································································· 385
가. 백미의 형식을 빌린 금전소비대차 / 385
나. 금전소비대차의 차용인인지 알선자인지 문제가 된 사례 / 385
다. 사인(私人)간의 어음?수표할인의 성격 / 386
라. 보험약관대출의 성격 / 387
4. 소비대차의 당사자······························································· 389
가. 소비대차 당사자를 인정할 때 고려해야 할 사실 / 389
나. 참고 판례 / 390
5. 변 제················································································392
가. 처음에 / 392
나. 변제 유무를 인정할 때 고려해야 할 사실 / 392
제10절 상소심 법관들의 사실인정에 관한 조언························································ 394
1. 의문 나는 점을 우선 '당사자'에게 물어볼 것··························394
2. 서증의 성립만으로 결론을 도출하지 말 것·····························394
3. 2단의 추정을 성급하게 사용하지 말 것·································395
4. 서증이 없는 경우······························································· 396
5. 문제 있는 판결문 설시의 예················································ 396
6. 당사자 주장의 사전 조정·····················································397
7. 증거의 종합판단·································································397
8. 진 술 서··········································································· 398
9. 큰 줄거리의 파악······························································· 398
10. 사실인정에서 배경과 경위, 인과관계 등의 중요성···················398
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