민사소송의 사실인정과 증인신문기법 (3 판 | 양장본 Hardcover)

민사소송의 사실인정과 증인신문기법 (3 판 | 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.
저자

이순동지음

1955년생으로서울대영문과(74학번)를졸업하고서울대법대대학원(78학번)을수료,22회사법시험에합격,사법연수원(12기)을수료,대구지방,고등법원판사,대법원재판연구관을역임하고,일본동경대학법학부객원연구원,동국대학교법대강사,변호사,경북대학교,영남대학교법과대학원겸임교수를거쳐현재는대구지방법원경산,영천,청도시군법원판사로일하고있다.

목차

머리말/3
제1장서설
제1절사실인정을둘러싼법관의고뇌와노력······························································3
제2절소송상사실인정의성질···················································································7
Ⅰ.역사적史實과의관계··································································7
Ⅱ.과학적진실과의관계··································································9
Ⅲ.뉴스보도및평론과의관계·························································10
Ⅳ.요약·····················································································12
제3절사실인정과관련된심리학적문제점································································14
Ⅰ.휴리스틱(heuristics)·····································································14
1.개요·················································································14
2.可用性휴리스틱(回想용이성휴리스틱)········································14
3.대표성휴리스틱(representativenessheuristic)································15
4.기준점과조정(anchoringandadjustment)휴리스틱······················16
5.감정휴리스틱(affectheuristic)··················································17
6.라벨링(labelling)·····································································18
Ⅱ.편향·····················································································19
1.뜻·······················································································19
2.종류·················································································20
가.기억관련편향/20나.사회적편향/23
다.인지적・행동적편향/28라.학술활동상의편향들/36
제4절사실인정과관련된언어적문제점··············································40
Ⅰ.법과언어의관계······································································40
Ⅱ.법언어학상의유의점··································································41
1.일상용어의사용법과괴리된법률용어······································41
2.언어의주체··········································································42
3.재판과지역사투리·································································43
4.사법통역··············································································43
5.언어에대한오해··································································44
6.언어행위의해석····································································45
7.상대방배려와언어사용·························································46
8.언어생활법칙과위증······························································47
9.말이기억에미치는영향-말이기억을바꿀수있다················49
가.Lofus의실험/49나.기억의구조/50
다.목격증언의기억의변용-라인업(line-up)질문/51
Ⅲ.번역의문제-영문계약서를중심으로··········································52
1.법률문서번역의장벽····························································52
가.법률용어의특징/52
나.법체계의차이와법률용어의미의차이/53
다.영문법률용어의특수성/55
2.영문계약서문례····································································56
가.계약의명칭/56나.구문/57
다.예문중에있는영문계약서에특유한표현/57
3.영문계약서의번역을어렵게하는특유의용어나표현················60
가.조동사/60나.때(時)를표시하는전치사・부사/63
다.그밖의문제/65
4.결론·················································································66
Ⅳ.우리법률언어의문제점·····························································67
1.서론·················································································67
가.법률언어와일상용어의관계/67
나.일본어의영향/68다.알기어려운표현/69
2.민법전제정과정과법률용어···················································70
가.의미/70나.독일민법전/71
다.일본민법전/72라.우리민법전의제정과개정작업/74
3.구체적인사례·······································································78
4.결론·················································································96
제5절재판의전문성과비전문성························································97
Ⅰ.절차형성과실체형성··································································97
Ⅱ.전문가와비전문가의영역··························································98
Ⅲ.판단의2가지형태····································································98
Ⅳ.국민의재판참여방식에관한제언············································100
제6절증거이외에사실인정에영향을미치는요인···················································101
Ⅰ.문제의소재············································································101
Ⅱ.사실인정의창조적작용···························································103
1.사실인정과판단··································································103
2.사실의채부········································································105
3.의도적인정········································································108
Ⅲ.변론전체의취지······································································108
1.의미와연혁········································································108
가.의미/108나.연혁/110
2.변론전체의취지만으로하는사실인정····································110
3.판결이유의표현··································································111
4.화해와변론전체의취지························································112
Ⅳ.구체적타당성·········································································112
1.사실(의사)의해석···················································