사문서의 진정추정 규정의 해석과 증명책임

Abstract

Article 357 of the Civil Procedure Act stipulates that in order for a document to be subject to documentation in civil proceedings, its authenticity must be proved. On the other hand, Article 358 of the Civil Procedure Act provides a provision for presuming the authenticity of the entire document if it is a document signed, sealed, or handprint by the principal or agent.
 The precedent established a two-stage presumptive law that if the document contains the seal of the title holder, it is presumed that the title holder was stamped, and thus the entire document was written by the will of the title holder. The former presumption is called the step 1 presumption, and the latter presumption is called the step 2 presumption.
 If the two-stage presumptive above is abused, the victory or defeat may be reversed by being used as evidence even though it is an inauthentic document. This should not be tolerated as it runs counter to the ideals of adequacy and fairness in civil litigation.
 Therefore, It is a question of how to understand the nature of each presumption around the legal principles of this presumption of private documents under the Civil Procedure Act, and whether the proof burden is shifted to those who want to reverse the presumption due to the presumption.
 Based on this point of view, this paper examined the history and interpretation of the presumption theory in the step 1, and the process of enacting presumption regulation in Germany and Japan, Acceptance of the Civil Procedure Act of Korea, Appearance of precedent and its process of change. Then, we reviewed the current status of our precedents and theories and critically reviewed the position of precedents on the strength of the step 1 presumption.
 Regarding the step 2 presumption, After confirming that the theory of interpretation in Germany is affecting Korea through Japan, The positions of precedents were closely analyzed to confirm that they were contradictory or ambiguous to each other.
 Combining the above review, it is argued that the step 1 presumption should be returned to pure de facto presumption as the most desirable interpretive theory in the current situation, The step 2 presumption is understood as a legal presumption, but considering the interpretation of our regulations and precedents different from Germany, it was concluded that it was reasonable to interpret it as possible to subvert it as counterevidence without changing the proof burden.