민사소송상 당사자 주장의 해석작업의 한계

Abstract

The Supreme Court of Korea has worked out the terminology of "the interpretation of pleading" in the lack of express pleading of the party if the material facts at issue have not been unequivocally pleaded in the civil procedure. Accordingly the Court has affirmed readily if the lower court had not erred in deciding on the consequential or ultimate facts inclusive of the material facts not apparently presented by the party. However the Court's precedents have in some respects hardly been in accord with the current civil trial procedure which has underscored the presentation of express and unambiguous pleadings for the purpose of identifying the issues and avoiding the variance between the pleading and the evidence. The Court has established the notion of the "indirect pleading" confirming even the apparently broad pleading not particularizing the specific material facts presented by the party regardless of whether he or she has a burden of pleading. The Court has recapitulated the notion on the ground that pleading shall not rule out the interpretation in the process of investigating the evidence as well as in the final stage of decision making, thus allowing the pleading submerged or putative in the apparent pleading to be treated the pleading as required in the burden of pleading. The Court's theory of indirect pleading lies in the deviation of the strict formalism on the pleading methods by inventing the notion of constructive pleading if the party has presented the evidence in a bid to support a corresponding material facts not shown in the express pleading. Such Court's lenient attitude on the pleading formality would possibly be interpreted as allowing the notion of "implied pleading" in some cases ultimately irreconcilable in current pleading system. The Court's precedents shall have to be scrupulously scrutinized in an attempt to verify the efficiency and efficacy of such concepts of "interpretation of pleading", "constructive pleading", or "indirect pleading", especially mindful of the current civil trial system on which the pleading shall have to be clearly presented and be unequivocally pronounced subjecting to the identifiable and ascertainable issues. Furthermore the trial court's concerted efforts to implement the clarification of the pleading would undoubtedly and strongly be urged in order to obviate the above-mentioned Court's established notions of pleading.