문서제출 명령의 요건으로서 관련성과 문서제출 거부사유로서 기술ㆍ직업 비밀 －대법원 2008. 4. 14. 자 2007마725 결정의 판시내용을 중심으로－

Abstract

Recently The Korean Supreme Court(KSC) has delivered a judgement reversing High Court’s conclusion, holding that if there is not any grounds to reject Order to Produce Documents provided at Article 344 ② of Civil Procedure Code(CPC), the holders of the documents have general duties to produce them to the court, which are relevant to with the fact to be proved, in reliance of Order of Produce Documents. High Court had reversed 1st Court’s decision to order to produce documents to defendant, on the ground that the ordered documents was not relevant to the fact to be proved, but only to be reversed by KSC. The issue here was what relevancy means, and in this specific case whether there was relevancy between the documents which the plaintiff had requested and the fact to be proved. In this case the plaintiff’s cause of action was fraud, including false representation of a past fact of defendant letting plaintiff to send money to company he had made for the purpose of forfeiture. Plaintiff requested Order to Produce Documents such as a cash book and a balance sheet of the company, of which defendant was a director. The request was admitted by 1st Court as relevant to the fact which was to be proved, but reversed in High Court. High Court made a mistake by misunderstanding the concept of relevancy, ruling that there was not direct relevancy between the requested documents such as a cash book of the company and the fact of false representation of defendant which was to be proved. The KSC corrected the mistake High Court had made, holding that the documents of the company which the plaintiff requested in this case was relevant to the fact to be proved. I thoroughly agree with the KSC’s conclusion, but it deserves criticism that the KSC has failed to articulate the rule which is related in this case. Generally CPC is not accustomed with the concept of ‘admissibility’ which is important in the U.S. law of evidence. In the U.S. law of evidence, it is clear that evidence is relevant only if it supports a factual proposition that is of consequence to the outcome at trial. The evidence is not only relevant when it directly relates to consequential facts, but also relevant if it has probative value-that is the presence of a logical relationship between the evidence and the ultimate proposition that the evidence is offered to support. In this case the KSC was right in conclusion, but failed to articulate the evidence rule of relevancy. The KSC should have make it clear that the evidence is not only relevant when it directly relates to consequential facts, but also relevant if it has probative value, even if not directly relates to consequential facts. Some holders of documents have right to reject Order to Produce the Documents on the ground that there are informations relates to secretes in technology and profession of the holder by CPC Article 344 ②. In this case the KSC delivered that company documents such as cash book and a balance sheet ect. are not such documents as prescribed in Article 344 ② of CPC.