裁判上 自白의 內容에 관한 小考

Abstract

There is the Article 288 on Facts not Requiring Attestation in Korean Civil Procedure Act which is prescribed as follows: The facts confessed by the parties in the court and the evident facts do not require any attestation: Provided, That confession contrary to the truth may be revoked when it is attested that it has been made due to any mistake. There are opposing opinions on the interpretation of the so-called 'disadvantageous' fact which is essential to the confession (Geständnis) by the parties in the court. The theory focusing on the possibility losing a suit and the theory focusing on the whereabouts of the Onus of Attestation (Beweislast) are representative amongst those. What is the meaning of the so-called ‘disadvantageous’ fact which is essential to the confession by the parties in the court?The Korean Supreme Court prcedents and quite a number of opinions presently support that the so-called ‘disadvantageous’ fact means the possibility losing a suit regardless of the whereabouts of the Onus of Attestation. But I dare to insist that the so-called 'disadvantageous' fact means that admitting a certain fact exempts the other party from the Onus of Attestation and to deny the fact which one party himself bears the Onus of Attestation is neither the so-called 'disadvantageous' fact nor the confession. The reasons for insisting this are as follows. (1) The theory focusing on the possibility losing a suit has some defects that makes the range of the confession excessively broad and can not define whether the fact is advantageous or disadvantageous. (2) There is no reason to regard admitting a certain fact which one party himself bears the Onus of Attestation as the confession because to deny the fact which one party himself bears the Onus of Attestation can not exempt the other party from the Onus of Attestation unlike normal confessions.