재판상 자백의 성립기준으로서 불리한 사실

다국어 초록 (Multilingual Abstract)

In civil lawsuits, there is a conflict regarding the concept of facts unfavorable to oneself in relation to the criterion for establishing admission. The one views admission as a case where all or part of the lawsuit is likely to lose if the other partys alleged facts are adopted as the basis for judgment, and the other views it as a statement acknowledging the other partys alleged facts for which the other party has the burden of proof. The Supreme Court is taking the former view. However, the basis for the binding power of admission is the principle of party presentation(Verhandlungsmaxime), the basic principle of civil lawsuits. The principle of party presentation allows the one party to decide the necessity of proving the facts the other party has alleged. It is reasonable to view facts unfavorable to oneself as a ‘statement that acknowledges the fact for which the other party has the burden of proof. Since the burden of proof determines the outcome of a lawsuit, in order to stabilize the litigation process, it is necessary to judge the pros and cons of the partys claims in accordance with the pre-determined criterion for distributing the burden of proof of facts. Only when a admission can be determined based on the responsibility of proof, the parties can freely allege or withdraw the facts in consideration of the burden of proof or the burden of allegation. It is appropriate that the binding effect of an admission is permitted to the minimum extent that it harmonizes the principle of the adversarial system and the ex officio. That is consistent with one of the ideal of civil proceedings, proper trial. In addition, Korean Civil Procedure Act should be seen as premised on the theory of burden of proof, because it requires proof of both ‘contrary to the truth’ and ‘resulting from a mistake’ as conditions for withdrawal of an admission. In the case where the person denies and then withdraws a fact for which the burden of proof is on him, if he proves the fact that he denied, it is resonable that the admission presumed to be made by mistake. The condition ‘resulting from a mistake’ is not needed. It can also be seen from the Civil Procedure Act which stipulates the duty of explanation(Article 126 of the Civil Procedure Act) that an admission is not to be established with the alleged facts for which one bears the burden of proof.