민사소송에서의 증명도 기준의 개선에 관한 연구

초록

The Korean Civil Procedure Law does not provide any standard of proof except for the free evaluation of proof at the article of 202. Therefore the Korean Supreme Court rules on the matter to adapt the highly likelihood as a standard of proof in the civil litigation. Almost all scholars who specialize in the civil procedure law give an opinion that the highly likelihood means more probable than 80%, which is very similar to the counterpart in Japan. They understand it has a function to draw line on limit of free evaluation of proof by the fact-finders. But the highly likelihood standard has some demerits like unclear guidance which causes some confusion on the exact application and high increase in the wrongful decision. To reduce the wrongful decision there are more discussion on the transfer of the duty to proof in the various ways. To get rid of such demerits of the highly likelihood standard I insist on the introduction of full fledged preponderance of evidence standard as a standard of proof in the civil litigation. If the Korean civil procedure law introduces such standard the Korean legislature can save to reshuffle the mechanism to optimize the standard of proof.

키워드