RISCON Legal Brief · First edition · Civil procedure & enforcement
To what degree must a fact be proved in a civil case? Decision 2008Da6755 on the degree of proof of a fact
Under Article 288 of the Civil Procedure Act and the authorities cited in Decision 2008Da6755 (28 October 2010), proving a fact in civil litigation is not a matter of proof in the natural-science sense but of proving a high degree of probability, to the point where an ordinary person would have no doubt. In that fire case, a suspicion that there was a considerable possibility the fire started from a cigarette was not by itself enough to establish that it was caused by cigarettes smoked by the defendant's employees.
First edition. Statute references are checked against the official text. Case law is cited only where the brief lists the decision below, checked against its official text. 2026-10-25
Question
A party who claims damages must prove the facts on which the claim rests. Article 288 of the Civil Procedure Act provides that facts admitted by the parties and notorious facts need no proof, and it says nothing about the degree of certainty required for the remaining facts. The question is how convincing the evidence of a disputed fact must be before a civil court may find that fact established.
Decision 2008Da6755 answers that question in a fire case. Plaintiffs, claiming that a fire was started by cigarettes smoked by the defendant company's employees, appealed from the Daejeon High Court's judgment of 20 December 2007 (2007Na4965), which had rejected their claim because the evidence raised a suspicion about the cause of the fire but did not establish it. The Supreme Court dismissed the appeal.
Material to check
The provision cited is Article 288 of the Civil Procedure Act, which provides that facts admitted by a party before the court and notorious facts need no proof, and that a confession contrary to the truth may be withdrawn on proof that it was made by mistake. The decision also refers to the principle of free evaluation of evidence, which its reasons deny was violated on those facts.
The decisions are Decision 2008Da6755 and the two precedents it cites for the standard of proof: Decision 89Daka7730 (26 June 1990), which held that proof of causation in civil litigation requires a high degree of probability such that an ordinary person would not doubt it, and found adequate causation between a traffic accident and a death occurring after anaesthesia, and Decision 99Da65097 (25 February 2000), whose text could not be opened.
Possible readings
Read with the authorities it cites, Article 288 and the general law of evidence leave the standard of proof to the court's reasoned assessment. Decision 2008Da6755 states that proof of a fact in civil litigation is not natural scientific proof admitting of no shadow of a doubt; absent special circumstances, it is proof, by a comprehensive review of all the evidence in the light of experience, of a high degree of probability that the fact occurred, and the assessment requires a degree of conviction such that an ordinary person would hold no doubt.
Decision 89Daka7730 states the same threshold for causation: the proof must show a high degree of probability that one fact brought about a result, and the assessment must give a conviction of truth such that an ordinary person would not doubt it, and that much is enough. In that case the Court found adequate causation between a traffic accident and a later death where the victim's death followed anaesthesia for facial fractures, even where the anaesthetic administration did cause the fatal liver failure and it was not established that there was gross negligence in the medical procedure.
A third reading follows from how Decision 2008Da6755 handled the suspicion in the case. Suspicion that there was a considerable possibility of the fire starting from a cigarette, combined with the low likelihood of an electrical short-circuit or arson by a third party, was still held insufficient to find that the fire came from cigarettes smoked by the defendant's employees; the burden of proving that the fire's cause lay in those employees' negligence was on the plaintiffs. The decision also held that, where no evidence established negligence, no tort arose, so an argument premised on the applicability of the Act on Liability for Fires as wholly amended by Act No. 9648 of 8 May 2009 could not be accepted.
What the decisions held
Decision 2008Da6755 (28 October 2010) dismissed the appeal in its entirety and ordered the unsuccessful plaintiffs to bear the costs of appeal. It stated the standard of proof in the words set out above and held that the court below had applied it correctly.
The court below, on the facts it found, had weighed that the defendant's employees habitually smoked in the coating room; that Non-party 1 said a paper cup used as an ashtray in the coating room had caught fire about twice before; that Non-party 2 remarked, just after the fire was discovered, that he guessed it was caused by a cigarette; that Non-party 3 had smoked in the coating room about an hour before the fire; and that flammable paper and the like were stored there. Taking these together with the low likelihood that an electrical short-circuit or arson by a third party caused the fire, it found there was a considerable possibility that the fire started from a cigarette, but held that this suspicion alone was not enough to find that the fire came from cigarettes smoked by the defendant company's employees, and that the plaintiffs bore the burden of proving the cause lay in those employees' negligence. The Supreme Court approved that reasoning and held there was no violation of the principle of free evaluation of evidence and no misunderstanding of the law on causation in tort or on the law of damages.
Because no evidence supported negligence on the part of the defendant or its employees, the Court held that no tort could be established, and it therefore rejected the argument that the case could proceed on the premise that the Act on Liability for Fires, as wholly amended by Act No. 9648 of 8 May 2009, applied to it.
Points left open
The decision does not say what would count as the 'special circumstances' in which its formulation of the standard would not apply, nor does it fix any rule for how suspicion of a cause may be converted into proof. It lists the circumstantial evidence that fell short and leaves the assessment of evidence to the court of fact.
The decision also leaves undecided how the Act on Liability for Fires as amended in 2009 would apply where a tort is established. It disposed of that argument only because negligence was not proved, so the content and reach of that Act in a fire case remain open.
When to reconsider
We revisit this brief if a later Supreme Court decision states the standard of proof differently or applies the decision's formulation to a case where suspicion of the cause is stronger, or if Article 288 of the Civil Procedure Act or the Act on Liability for Fires is amended.
Statutes referred to
- 민사소송법 제288조
Decisions referred to
Verification status
All texts were read at the National Law Information Center on 24 October 2026. The decision was read in its published holdings, summary and full reasons, Article 288 of the Civil Procedure Act in its current text as published, and Decision 89Daka7730 in its holdings and summary; the text of Decision 99Da65097 could not be opened.