민사소송의 사실인정과 증인신문기법 (3 판 | 양장본 Hardcover)

민사소송의 사실인정과 증인신문기법 (3 판 | 양장본 Hardcover)

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Description
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.
저자

이순동 지음

1955년생으로 서울대 영문과(74학번)를 졸업하고 서울대 법대 대학원(78학번)을 수료, 22회 사법시험에 합격, 사법연수원(12기)을 수료, 대구지방, 고등법원 판사, 대법원 재판연구관을 역임하고, 일본 동경대학 법학부 객원연구원, 동국대학교 법대강사, 변호사, 경북대학교, 영남대학교 법과대학원 겸임교수를 거쳐 현재는 대구지방법원 경산, 영천, 청도 시군법원 판사로 일하고 있다.

목차

머리말 / 3
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··································