선행자백과 등가치진술의 이론

Abstract

Confession (Geständnis) generally means that at a pleading date or a preliminary pleading date, a party make a statement unfavorable to himself which, however, complies with the other party's argument. Confession in itself means to admit such a fact unfavorable to himself as true that the other party insists, and it is a confession at a trial if stated during a pleading date or a preliminary pleading date and it has a special meaning at a civil suit which adopts defense principle for the effect of litigation. In addition, once confession is established, it is unnecessary to prove its validity. Therefore, the one who bears the burden of proof regarding the confession becomes free from such burden and a court has to adopt such a confession as a basis of judgment even if the court has got a belief different from the confession of a party. A confession at a trial is a kind of action and therefore, it has to fulfill effective requirements of litigation to be valid. Accordingly, a party must possess litigation capacity. Establishment of a confession begins with concurrent statements of both parties. Generally speaking, the other party's statement precedes a confession and then confession is established by admitting such statement later. However, a party may make a statement unfavorable to himself in advance and then the other party quotes it afterward for a confession to be established. If a party voluntarily makes a statement unfavorable to himself in advance and then the other party quotes it explicitly or makes a statement complying with said unfavorable fact, this binds a court which becomes obliged not to acknowledge a fact contradictory to said fact. Also, it is necessary for both parties' arguments are consistent each other if a party voluntarily makes a statement unfavorable to himself in advance and then the other party quotes it and therefore, the party who makes an unfavorable statement is entitled to withdraw his own statement and to freely make a statement contradictory to previous one prior to the other party's quotation. This is a problem related to preceding confession. This study looks into a problem related to preceding confession among various kinds of confession (Geständnis). What is preceding confession, This study will examine which binding power preceding confession has on parties and court. In addition, a preceding confession, which means the situation that a party made a statement unfavorable to himself in advance but the other party has not yet quoted it is distinguished from a confession at a trial, and with respect to a preceding confession this study looks into a theory of equivalent statement being argued in Germany and Japan.