要件事實에 관한 具體的 檢討

Abstract

There are concepts of ‘the legal effect’ and ‘the legally required factor’ in civil law, ‘the chief matter of fact’ in civil procedure, in Korea. ‘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 chief matter of fact’ means the fact that should be indicated by the party concerned before judge examines. The writer has read a paper at an academic meeting and published it in a journal. In the paper, he expounds the concepts and mutual relationships of the legally required factor, and divides it into 3 types. ‘The factive(concrete) factor’ can be verified directly by evidence, so it becomes ‘the legally required fact’-‘the chief matter of fact’ in suit- by itself. But ‘the estimate-needing factor’ and ‘the normative factor’ can be infered or judged only by another concrete fact(proven by evidence), and cannot be proven by evidence directly, so the (another) concrete fact becomes ‘the legally required fact’-‘the chief matter of fact’ in suit. This article gives the points of the previous treatise at the beginning, and develops and applies them in specific subjects of civil law and civil procedure.