문서의 진정성립 -미국연방증거규칙과의 비교법적 관점에서-

Abstract

(1) The majority theory on the nature of authentication of a document views that the authenticated document is a document recognized to be written by a will of a person who draws up the document that the party adducing the evidence claims, and regards both parties in the same light while saying that this document has formal weight of evidence. But the minority opinion views the meaning of authentication of a document in the same way as the majority theory, but shows a standpoint that it is credibility that makes to believe that the writer of the document has actually presented the will appeared in the document. On the other hand, the judicial precedent is not incoherent because it also views the authentication of a document as an issue of admissibility of evidence or an issue of formal weight of evidence. The majority theory and judicial precedent is dealing with the formal weight of evidence of the meaning that the minority theory says, as an issue of substantial weight of evidence. (2) The majority theory views the authentication issue as (formal) weight of evidence on the premise that the admissibility of evidence is not denied in a civil suit, but it is not proper that as the weight of evidence means a probative value or probativeness, namely, credibility or belivability of evidence, the authentication issue of a document becoming an issue in a prior stage of evaluation of weight of evidence is viewed as an issue of weight of evidence. Nonetheless, it is also difficult that the authentication is viewed as an issue of admissibility of evidence being formally and objectively decided by the law making organ. (3) Accordingly, it is necessary that this part is established as a separate concept instead of admissibility of evidence or weight of evidence. Unlike the admissibility of evidence that the admissibility of evidence is uniformly decided, if it is noticed that the concept of conditional relevancy becoming a Preliminary of the admissibility of evidence in the family law area of Anglo-American Law has a meaning in only a certain context in relativity depending on the case, it can be most proper that the basis of judgment that any document is recognized as an authentic thing and admissible, and the other document is not admissible because of being not authentic among documents being separately submitted in the case is grasped with a concept similar to conditional relevancy. (4) In relation to the authentication of a document which is one of types of conditional relevancy as a theory of legislation in this standpoint, it is thought to be better to widen the scope of presumption by adding a presumption provision of authentication like the regulation of Article 902 of FRE, and in principle, to remove the useless statement of "lack of knowledge" by rejecting the statement of admission or objection regarding the evidence about a document that the resumption provision is applied. It is thought that what makes the parties to a suit be able to get a decision of the appellate court is a better method in aspects of economical judicial proceeding and promotion of trust on the administration of justice of the people by describing this, after deducing a reasonable conclusion through intensive examination of evidence only on a part that the substantial authentication issues as a case that the detailed reason of the statement of 'denial' or 'lack of knowledge' was presented.