채무불이행, 특히 이행지체를 이유로 하는 손해배상청구에 있어서의 요건사실

Abstract

Concerning to the burdens of assertion and proof, we can define it as a set of facts/factors which one of the parts in process should assert and prove for winning his lawsuit. In the civil suit, it needs to confirm what the legally required fact as taking effect of one’s right is, and how the burden of proof should be divided for solving the given conflict under the offense/defense structure in the civil suit. ‘The legal effect’ means the occurrence, change and extinction of rights or obligations as a result of legal action. ‘The legally required factor’ means the requisites (fact or situation) that bring about ‘the legal effect’. The default by debtor in an obligation of civil contract has the legal effect such as right to compensation for default. For the right to compensation for default by the debtor is required the elements of conditions or legal conditions by the civil law. It is composed of following elements: (i)existence of original debt, (ii)possibility of this debt, (iii)lapse of time for the performance, (iv)subjective liability of debtor, (v)illegality of default, (vi)existence of the creditor’s damage and its amounts. Some elements of the elements of conditions or legal conditions for the compensation for default by debtor can be the element of requisite fact. The elements of constitutive conditions such as (i)existence of original debt, (ii)possibility of this debt, (iii)lapse of time for the performance, (vi)existence of the creditor’s damage and its amounts belong to the element of requisite fact. and (iv)the subjective liability of debtor, (v)the illegality of default belong to the pleas which the debtor should assert and prove. In the part Ⅱ of the paper is described these elements for the legally required fact from the perspective of the legally required factor. Issues Regarding Requisition Facts is reviewed in controversial legal problems at the point of the substantive law in the part Ⅲ.