Summary
The statutory conditions for revocation must be met: the confession must be contrary to the truth and must have been made by mistake.
5.1The Standard by Which the Path Opens
The mere circumstance that one has become disadvantaged cannot undo a premise of deliberation already settled. Even in the deemed rules concerning non-appearance there is an exception for notice of a hearing date by public notice. Whether a confession can be undone on the sole basis of an assertion that it was a mistake, and what the standard is by which the channel of this relief opens, are the questions now posed. Plaintiff A, while dealing with the statement of Defendant B, invokes, as a statement of admission, the passage in which B answered that he did not know. In this scene, the same term, revocation of confession, means the removal of the effect of a confession under statutory requirements. Finding grounds to undo a premise of deliberation already settled lies on the same path as finding the statutory requirements for removing the effect of a confession. Therefore, one must first make clear what those requirements are.
The relevant wording is: facts that a party has admitted in court and manifest facts shall not require proof. However, a confession contrary to the truth may be revoked when it is proved that the confession arose from mistake. This passage groups together facts admitted by a party in court and manifest facts, defines them as facts not requiring proof, and takes the position that such facts need no proof. At the same time, it places a proviso dealing with confession alone, providing that it may be revoked only when it is proved that the confession was contrary to the truth and arose from mistake. That is, on the wording, the key to revocation is not an assertion of mistake but the proof of a confession arising from mistake. The subject is the party who made the confession in court, the act is that party's confession, and the condition is the proof of divergence from the truth and of arising from mistake. (Article 288 of the Civil Procedure Act)
On that basis, the first task is to distinguish the requirements for classification as a confession, a contest, and a manifest fact. A confession refers to a fact that the party admitted themselves; a contest takes the form of a statement denying or disputing a fact; and a manifest fact is a fact adopted without separate proof. Although these three are similar in form in that they do not require proof, the channel for undoing a confession lies with confession alone. Where the statutory conditions for revocation of confession are met and this is reflected, the entrance to this relief opens. This is why the determination that the entrance opens must be distinguished from the determination of the establishment of the confession itself. The former is the opening of a channel premised on a specified claim and the right to mount a defense; the latter is the question of what fact became the object of the confession. If the two stages are handled at once, the requirement of proving mistake set by the wording becomes blurred.
The strongest counterargument targets the point that, because a mistake is difficult to prove, a determination at odds with reality may remain. If the confession is recorded contrary to fact while the materials proving the mistake are insufficient, the court can only continue its deliberation upon the erroneous fact, and the party must bear that disadvantage. Here the loss of a determination at odds with reality, the inconvenience of a lawsuit being prolonged over a single confession, and the value of procedural economy collide. Even so, the discovery of a disadvantage cannot be converted at once into proof of mistake. The point in time at which one learns of an adverse result and the point in time at which one confessed by mistake are different things; if the former is made the proof of the latter, the proof requirement demanded by the wording disappears. While leaving intact the disadvantage noted by the counterargument, that a determination at odds with reality may remain, it clearly leaves in place the point that the door to revocation does not open on that disadvantage alone.
The fact relevant in the synthetic scene is one. Defendant B answered that he did not know the fact, and Plaintiff A cites this as a statement of admission. This scene, in which Plaintiff A cites as a statement of admission the statement in which B said he did not know, bears directly on this question, which asks the statutory conditions for revocation of confession. What must be looked to on the record are the transcript of the party's statement, the answer, the assertion of revocation of confession, and the materials of mistake. Where the context of the statement or the fact taken as the object of the confession is unclear, the matter remains undetermined. If it is confirmed that the statement of not knowing was recorded as an admission, the conclusion changes under the rule presuming a contest; this is not a fact that actually occurred but an exercise of altering one condition of adjudication. On this scene alone, the year, the amount, the date from which a period is computed, or the outcome of the judgment is not determined, and any value not fixed is left as it is.
The conclusion this section permits is narrow. A confession cannot be undone on the sole basis of an assertion that it was a mistake; the channel of revocation of confession opens only where the statutory conditions for revocation — a confession contrary to the truth and made by mistake — are met. Here, revocation of confession means the removal of the effect of a confession under statutory requirements, and even if the discovery of a disadvantage is converted into proof of mistake, this conclusion is not altered.
5.2The Conditions That Block Relief
If this statement can be treated as a confession in court, that fact is settled without proof, and the party can hardly deny that fact again. However, what a party must prove when seeking to undo a confession, and what circumstances cannot substitute for that proof, must be determined separately. Revocation of confession means the removal of the effect of a confession under statutory requirements. Without those requirements, the channel of relief is closed. The reason that a premise of deliberation cannot be undone by the mere circumstance of having become disadvantaged is the starting point of this question.
The statutory provision is Article 288 of the Civil Procedure Act: "Facts that a party has admitted in court and manifest facts shall not require proof. However, a confession contrary to the truth may be revoked when it is proved that it arose from mistake." The subject of which the preceding sentence speaks is the party who stated in court; the act is a judicial confession; and as a result the confessed fact and the manifest fact are settled without proof. The following sentence deals with the opposite side of this confession. It may be revoked only where the party proves that the confession diverges from the truth and that the divergence arose from mistake. This wording binds revocation of confession to separate requirements.
This wording deals, in one stage, with facts settled without proof and their binding effect, and demands the statutory conditions for revocation of confession in a separate stage. The reason the two stages must be distinguished is that, while the confession remains valid, the party cannot deny that fact again. Only upon satisfying the statutory revocation condition of a confession made by mistake is this binding effect released. Thus only where both requirements — that the confession diverges from the truth and that it was made by mistake — are established together is a determination not reflecting the confession possible. Where a judicial confession remains valid and the channel for denying that fact again is blocked because the statutory revocation requirements are not met, if any one of the statutory requirements is unmet, the channel of relief is closed. Without adding any new requirement or exception, this distinction follows directly from the wording.
The strongest counterargument lies in the difficulty of proof. That a mistake is difficult to prove, so that a determination at odds with reality may remain, causes the party actual loss. Even if it later emerges that the statement diverged from fact, unless the party shows that the statement was made by mistake, the court must maintain the confessed fact as it is. In that case the outcome of the lawsuit may be fixed in a direction at odds with reality, and the party loses the opportunity to contest again. The inconvenience that there is no means of correction where a determination was wrongly made is also great. Yet the discovery of a disadvantage cannot be converted at once into proof of mistake. Learning of an adverse result is a circumstance separate from the requirements for removing the effect of a confession. Even without erasing the injustice the counterargument points out, the want of statutory requirements remains as it is.
The facts relevant in this scene are two. Defendant B answered that he did not know the fact, and Plaintiff A cites this as a statement of admission. If this statement has been recorded as a judicial confession, the fact that is its object is settled without proof, and Defendant B cannot deny it again. However, where the context of the statement or the fact taken as the object of the confession is unclear, the establishment of the confession itself remains undetermined. A further contrast corresponds to a test that alters the foregoing conditions. If the statement of not knowing has been recorded as an admission, the conclusion is revised under the rule presuming a contest. This is not an additional fact of the actual case but an adjudication condition for when the manner of recording changes. The presence or absence of materials of mistake, and the success or failure of the assertion of revocation of confession, cannot be confirmed in this scene.
The conclusion this section permits is narrow. A confession may be revoked, and that fact may be denied again, only where both statutory conditions for revocation — that the confession diverges from the truth and that it was made by mistake — are satisfied. If either requirement is wanting, the channel of relief is closed, and the judicial confession remains valid, with that fact maintained as settled without proof. Conversely, the conclusion this section does not permit is equally clear. The mere circumstance that one became disadvantaged because of the confession cannot be taken as proof of mistake, and the want of the requirements for revocation cannot be made up by other circumstances. The definition of revocation of confession as the removal of the effect of a confession under statutory requirements operates only within this boundary.
5.3The Boundary That Remains When There Is No Data
In the scene where Defendant B answered that he did not know the fact and Plaintiff A cites this as a statement of admission, the first question remaining is whether what B's statement contains and the object A cited are one and the same. Accordingly, the question now posed is whether a confession can be undone on the sole basis of an assertion that it was a mistake, and one must examine where the boundary of that determination lies.
The relevant text provides: "Facts that a party has admitted in court and manifest facts shall not require proof. However, a confession contrary to the truth may be revoked when it is proved that it arose from mistake" (Article 288 of the Civil Procedure Act). Here, "the party" refers to the person who stated in court; "the confessed fact" refers to the fact itself confessed in court; and the wording "arose from mistake" refers to the error that caused the confession. The expression "may be revoked" opens the path to revocation; issues under other provisions are not dealt with together in this wording.
What this wording sets as requirements for revocation are the two of divergence from the truth and mistake, and the two must be confirmed separately. The fact of divergence from the truth alone is not sufficient; only when it is proved that the confession stemmed from mistake does the effect of removing the confession's effect arise. This distinction separates the assertion that it was a mistake from the proof of it. Unless what fact B's statement originally addressed is specified, not even the material for judging which of the two requirements is contested is prepared.
The strongest counterargument presses the point that, because a mistake is difficult to prove, a determination at odds with reality may remain. If the confession is maintained, the premise disadvantageous to B is fixed as it is, and as a result a fact at odds with reality binds the trial. This disadvantage cannot be lightly passed over. Revocation of confession is the removal of the effect of a confession under statutory requirements, and those requirements are not satisfied by the mere circumstance that an adverse result appears.
What is confirmed in this scene is the divergence between the passage where B answered that he did not know the fact and the passage where A cited this as a statement of admission. Where the context of the statement or the fact taken as the object of the confession is unclear, the failure to specify the material of determination is not an incapacity tantamount to failure to meet the revocation requirements, but remains undetermined. If it is confirmed that the statement of not knowing was recorded as an admission, the conclusion changes under the rule presuming a contest; this merely shows that the determination may change when the form of the statement record changes. Whether this condition actually obtained cannot be confirmed on this scene alone.
The conclusion this section permits is narrow. One seeking to undo a confession must prove divergence from the truth and mistake respectively, and matters unclear as to the object of the confession or the context of the statement are left in a state of being undetermined, without any determination of impossibility of proof. Conversely, the path to denying that fact again does not open where the statutory conditions for revocation of confession are unmet. However, what any statement was directed at cannot be discerned on this scene alone.
5.4The Records Needed for Determination
A confessed fact is fixed as a premise of trial without separate proof, but that fixation may be undone. Can a confession be undone on the sole basis of an assertion that it was a mistake? Which records are needed? On precisely this question, the threshold of revocation of confession — that is, the removal of the effect of a confession under statutory requirements — and the materials of determination must be fixed.
The relevant wording is Article 288 of the Civil Procedure Act. Article 288 provides: "Facts that a party has admitted in court and manifest facts shall not require proof. However, a confession contrary to the truth may be revoked when it is proved that it arose from mistake." The subject this wording designates is the party who stated in court; the act is taking that statement as a confession. The condition is the case where it is proved that the content of the confession diverges from the truth and that the divergence stems from mistake.
Linking this condition with the conclusion of this section specifies the material for the stage determination. The stage is determined solely on the material recorded in the transcript of the party's statement, the answer, the assertion of revocation of confession, and the materials of mistake. Here, "materials of mistake" means the records showing the reason the confession was erroneous, and the scope of those records is limited to the four items stated above. The stage determination is made only on the records as fixed, and absent records are not filled in by inference. The existence of a confession and the revocation of a confession must be distinguished. Because the former constitutes the ground for exemption from proof and the latter is a separate stage of determination that removes that ground, different records and conditions are required.
The strongest counterargument seeking to narrow this distinction is as follows: because a mistake is difficult to prove, a determination at odds with reality may remain, and as a result it is unjust for a fact at odds with reality to bind the trial on account of the party's own mistake. The loss this counterargument targets is clear. If materials of mistake remain absent or insufficient, the confessed fact may be fixed even though the declarant's memory was in fact wrong. Even so, the answer is maintained within the defined scope. For the mere circumstance that one realized it would operate disadvantageously in the lawsuit does not establish that the content of the confession diverged from the truth and that its cause was mistake.
Fitting the synthetic scene to this question, Defendant B answered that he did not know the fact, and Plaintiff A cites this as a statement of admission. In this situation, what remains in the records is the transcript of B's statement and the answer, and when an assertion of revocation of confession is added thereafter, the materials of mistake are placed alongside. What fact could become the object of the confession, and what exactly B's statement said, must appear from these records. If it is confirmed that the statement of not knowing was recorded as an admission, the conclusion is revised under the rule presuming a contest. However, on this scene alone the actual content of the records or the sufficiency of the materials of mistake cannot be confirmed, so that issue remains undetermined.
Accordingly, the conclusion this section permits is that, by examining on the records as fixed the statutory revocation conditions of confession and mistake, the effect of the confession can be undone. This section does not permit undoing a confession by adding circumstances outside those records or by filling gaps in the records with inference.
5.5Circumstances That Change the Decision
Even with the concern that a judgment at odds with reality may remain, the mere fact that one has been placed at a disadvantage cannot undo the adjudicative premise already settled. In the scene where Defendant B answered that he did not know the fact and Plaintiff A cited it as a statement admitting it, can a confession be eliminated merely on the assertion that it was a mistake? And what kind of change overturns the stage determination already made is the present question. This question is handled in a way that distinguishes the conditions under which the effect of a confession can be removed from the scope within which the determination must be redone once those conditions are satisfied.
The statutory text corresponding to this question is Article 288 of the Civil Procedure Act. It provides: "Facts admitted by a party in court and notorious facts shall not require proof; provided, that a confession contrary to the truth may be revoked when it is proved to have been made by mistake."(Article 288 of the Civil Procedure Act) Here, facts admitted by a party in court refer to facts acknowledged by a party in the lawsuit, and notorious facts refer to facts that may be used without separate proof. The proviso, however, separates the object of a confession from the object of revocation: exemption from proof of the confessed fact and removal of the effect of the confession are placed at separate stages of determination.
This definition is important because the assertion that it was a mistake cannot, by itself, be regarded as having already extinguished the effect of the confession. What the above text requires is satisfaction of the two conditions that the confession is contrary to the truth and that it was made by mistake. Being contrary to the truth means that the confessed fact differs from reality, while being made by mistake means that the circumstance under which it was recorded differently lies in a mistake, and the two conditions must be confirmed together. If it is confirmed that the direction of the record is changed, the existing determination is discarded and the determination is redone from the beginning.
It may be difficult to prove the mistake, so that a judgment at odds with reality may remain. This counterargument points out that the result is one in which the lawsuit carries an erroneous fact forward, and that the party is always the one who possesses the materials capable of proving the mistake, so that this burden is heavy. This observation, however, cannot serve as grounds for converting the discovery of disadvantage into proof of mistake. The point in time at which one recognized the possibility that it would operate unfavorably and the point that there was a mistake at the time of the confession are separate circumstances. While acknowledging the difficulty indicated by the counterargument, the conclusion of this section is to leave the statutory requirement for revocation as it stands.
The point at which this passage touches the question of this section is not the content of the cited statement, but how that statement was recorded. If what remained in the record was a statement that one did not know, that is closer to a denial than an admission, and the object to be taken as a confession changes accordingly. If, however, the context of the actual record is unclear, the object of the confession itself remains undetermined.
The boundary of this section is drawn here between the point that a confession cannot be eliminated merely by the assertion that it was a mistake, and the point that, if it is confirmed that the direction of the record is changed, the determination must be redone from the beginning. Revocation of confession is a removal permitted only in cases that clear the statutory threshold of proof of mistake, and if that threshold is not cleared, the confession remains valid and the channel for denying the fact is closed. Conversely, if it is confirmed that the direction of the record has changed so that the confession itself is not established, then the matter passes to redetermination rather than revocation. Is the fact stated in the relevant judgment also a notorious fact?
5.6The Strongest Counterargument and the Answer
In the scene where Defendant B answered that he did not know the fact and Plaintiff A cited it as a statement admitting it, the first question is what role B's statement actually plays. In response to the question whether a confession can be eliminated merely by the assertion that it was a mistake, the analysis does not stop at requiring the statutory grounds for revocation, but now examines how far the circumstance that it may be difficult to prove the mistake so that a judgment at odds with reality may remain weakens that requirement. The starting point is that the mere fact that one has been placed at a disadvantage cannot undo the adjudicative premise already settled.
The source text corresponding to this question is Article 288 of the Civil Procedure Act. The subject to which this text refers is the party who made the confession, the object is the fact confessed in court, and the condition is the case in which it is proved that the confession is contrary to the truth and that the confession was made by mistake. Without addressing other issues of the Article, the term revocation of confession means the removal of the effect of a confession under statutory requirements.
If this text and its basis are placed side by side, it becomes clear that the channel through which the court eliminates a confession is bound to proof. Proof refers to the two requirements of contrariety to the truth and mistake, and not to whether the result is favorable or unfavorable to B. Here, the definition that revocation of confession is the removal of the effect of a confession under statutory requirements makes that distinction plain. Accordingly, the point in time at which disadvantage is discovered and the point in time at which mistake is proved are separate stages of determination, and the moment the former is read as the latter, the proof requirement becomes an empty form.
The strongest counterargument targets the loss left by this distinction. The fact that it may be difficult to prove the mistake so that a judgment at odds with reality may remain means the inconvenience and injustice of an erroneous fact in a lawsuit hardening as the premise of the adjudication. From the party's standpoint, answering that one did not know a fact one cannot recall ends up operating unfavorably, and if that disadvantage remains as an already settled premise of the adjudication, the court's determination proceeds at odds with reality. The loss pointed out by the counterargument remains as it is, but an assertion that fails to satisfy the statutory requirements for revocation of confession cannot make up for that loss.
Setting out only the facts relevant to this question in the synthetic scene, Defendant B answered that he did not know the fact, and Plaintiff A cites it as a statement admitting it. Comparing these two facts with the foregoing conditions, what fact B's statement took as the object of confession, and whether the answer of not knowing was in fact recorded as a confession contrary to the truth, cannot be determined from the scene alone. Accordingly, whether revocation of confession is possible remains undetermined. However, viewed in light of the test that alters the condition under which, if a statement of not knowing had been recorded as an admission, the conclusion would be corrected pursuant to the rule that presumes the matter was contested, all that can be confirmed is that if the form of the record differs, the premise of the determination may differ as well.
The conclusion this section permits is limited to understanding revocation of confession as the removal of the effect of a confession under statutory requirements, and to the scope that a mere assertion of mistake failing to satisfy those requirements cannot eliminate the confession. The conclusion it does not permit is substituting, for proof of mistake, the circumstance that one has been placed at a disadvantage or the concern that a judgment at odds with reality may remain; and it is to assert categorically the possibility of revocation while the context of the statement or the object of the confession remains unclear.
5.7The Link to the Application and the Dispositive Part
In this scene, the determination of the preceding section as to the effect of a confession goes so far as to accept that fact without proof, and the mere fact that one has been placed at a disadvantage cannot undo the adjudicative premise already settled. If so, after newly discovering the circumstance that the lawsuit is running in an unfavorable direction, can a party eliminate that statement at once simply by asserting that his statement was a mistake? This question leads to the distinction that the effect of a confession formed in the course of a lawsuit can be removed only under statutory requirements. Revocation of confession means the removal of the effect of a confession under statutory requirements; the issue here is whether those requirements are satisfied, and disadvantage itself is not a requirement.
The source text addressed in this section is as follows. "Facts admitted by a party in court and notorious facts shall not require proof; provided, that a confession contrary to the truth may be revoked when it is proved to have been made by mistake." In this text, a confession means a statement made by a party in court, and the confessed fact is the specific fact that became its object. The wording "may be revoked" opens, conditionally, the legal channel through which the confessed fact can be denied again, and the conditions are, first, that it is a confession contrary to the truth, and second, that it is proved to have been made by mistake.
The two conditions above must be satisfied together, and neither one alone brings about revocation of confession. The first condition is the circumstance that the confessed fact is contrary to the truth; the second condition is proving before the opposing party or the court the circumstance that the confession was made by mistake. Why these two must be examined separately is the core of this section. The concern that a fact recorded to one's own disadvantage in a lawsuit may differ from reality touches upon the first condition, but that concern alone does not prove at the same time that the confession arose from mistake. Since revocation of confession is the removal of the effect of a confession under statutory requirements, it is clear that the subject is the party, the act is the confession, and the conditions are the two stated above. Facts determined without proof and the binding force thereof are a stage that is released only when these requirements are satisfied.
The counterargument targets the reality in which that binding force is difficult to release. That is, to prove why one's own statement arose from mistake, one must draw out as materials one's perception at the time and the circumstances of what was said, and it is not easy for a party to support even such inner circumstances. As a result, even if a fact recorded in error remains, the confession may be maintained for lack of proof and an unjust determination may become fixed. Such loss and inconvenience are not small. The counterargument fears that the operation of the requirements for revocation of confession may obstruct the discovery of substantive truth. The answer to this, however, has a defined scope. The discovery of disadvantage cannot be converted at once into proof of mistake, and the mere fact that one has been placed at a disadvantage cannot undo the adjudicative premise already settled. The difficulty of proof is acknowledged, but it cannot be resolved by reducing the requirements.
The analysis now returns to this scene. On this fact alone, it cannot be determined whether the requirements for revocation of confession are satisfied. Whether B's statement was a confession, and what the context of the statement or the fact taken as the object of the confession was, must first be clarified, and this is a matter to be addressed by the record of the party's statement, the answer, the assertion of revocation of confession, and the materials of mistake. Because there are no materials of mistake within the scene, whether the mistake is proved remains undetermined. The point that, if a statement of not knowing had been recorded as an admission, the conclusion would be corrected pursuant to the rule that presumes the matter was contested merely presents a condition that inverts whether a statement of not knowing and a statement of admission remain differently in the record. What can be established from this scene is only the fact that the statement is cited, and the distinction that the determination of revocation of confession requires separate requirements.
In sum, a party cannot eliminate a confession merely by asserting that his statement was a mistake, and must satisfy the statutory grounds for revocation—that the confession is contrary to the truth and arose from mistake. Being contrary to the truth and arising from mistake are both required, and either one alone is insufficient. The fact that proof is difficult does not serve as grounds for lowering the requirements; accordingly, where the judicial confession remains valid and, the statutory grounds for revocation not being satisfied, the channel for denying that fact again is blocked, the confession remains binding as it is. The definition that revocation of confession is the removal of the effect of a confession under statutory requirements supports this distinction.
5.8The Scope This Section Undertakes
Even if one learns, after the determination has ended, that the result has tilted to the disadvantage of one side, that alone does not permit going through the facts already established anew from the beginning. Building on this, the question now addressed is, in the scene where Defendant B answered that he did not know the fact yet Plaintiff A cited it as a statement admitting it, whether the attitude of not contesting the fact changes the boundary of relief. Whether a confession can be eliminated merely by the assertion that it was a mistake remains an issue in this section.
Article 288 of the Civil Procedure Act, the source text in question, provides: “Facts admitted by a party in court and notorious facts shall not require proof; provided, that a confession contrary to the truth may be revoked when it is proved to have been made by mistake.” In this text, a confession refers to a statement made by a party in court, and a notorious fact means a fact that does not require separate proof. The proviso, however, attaches the condition that the revocation of which it speaks is possible only in cases possessing both conditions together—that the confession is contrary to the truth and yet arose from mistake.
Under this text, the mere assertion of a mistake does not eliminate a confession. Revocation of confession is the removal of the effect of a confession under statutory requirements, and is permitted only when it is proved that the confession is contrary to the truth and that such confession was made by mistake. Here, the stage of removing the effect of the confession and the stage at which a party contests and demands proof are separate. The former is a procedure for erasing facts already established through the statutory grounds for revocation, while the latter is the path of contesting whether the confession was established in the first place; if the two are mixed together, the door to denying a confession widens beyond expectation.
The counterargument begins from this point. If a confession contrary to the truth remains and leads to a judgment, it may feel unjust that by the time a party learns of that fact it is already too late. The reason for adhering to the statutory requirements even while bearing such inconvenience is that the discovery of disadvantage cannot be converted at once into proof of mistake. Even where the judicial confession remains valid and, the statutory grounds for revocation—contrariety to the truth and mistake—not being satisfied, the channel for denying that fact again is blocked, if revocation were to be admitted merely because one has been placed at a disadvantage, the threshold for removing the effect of a confession would in effect collapse.
Whether the context of such a statement clearly reveals what fact it took as the object of the confession remains to be determined. Where the context of the statement or the fact taken as the object of the confession is unclear, whether a confession was established must first be settled, and this lies beyond the scope of determination of this section. The assumption that, if a statement of not knowing had been recorded as an admission, the conclusion would be corrected pursuant to the rule that presumes the matter was contested is no more than a test for altering the conditions of determination, not a fact that actually occurred.
What can be concluded in this section is that a confession cannot be eliminated by the mere assertion of a mistake, and that the statutory grounds for revocation—that the confession is contrary to the truth and arose from mistake—must be satisfied. Revocation of confession is the removal of the effect of a confession under statutory requirements, and if that door does not open, the party cannot deny the confessed fact again. However, it is not for this section to address other issues as well, such as whether a contest has been established or the allocation of the burden of proof.
5.9Application of the Text of the Provisions and the Holdings of Precedents
이 장면에서 쟁점은 실수였다는 주장만으로 자백을 없앨 수 있는가 여부이다. 이제 해당 원문 문언이 증명 없이 정해지는 사실과 그 구속에 어떻게 적용되는지를 살핀다.
해당 원문은 다음과 같다. “법원에서 당사자가 자백한 사실과 현저한 사실은 증명을 필요로 하지 아니한다” (민사소송법 제288조). 여기서 당사자가 법원에서 한 자백은 그 대상 사실에 대해 별도의 증명을 요구하지 않는 효과를 가진다. 현저한 사실은 같은 조문에서 자백과 나란히 놓인 별개의 불요증 사실이다.
같은 조문은 “진실에 어긋나는 자백은 그것이 착오로 말미암은 것임을 증명한 때에는 취소할 수 있다” (민사소송법 제288조)라고 덧붙인다. 이 문언은 취소의 요건을 둘로 나눈다. 자백이 진실에 어긋나야 하고, 그 어긋남이 착오로 말미암은 것임을 증명해야 한다. 자백 취소는 법정 요건 아래 자백의 효력을 제거하는 것으로, 앞의 불요증 효과를 다시 뒤집는 절차이다.
이 구별이 중요한 까닭은 실수였다는 주장과 착오의 증명이 같은 단계에 놓이지 않기 때문이다. 불리해졌다는 사정은 자백이 원고에게 유리하게 작용한다는 것을 보여줄 뿐, 자백이 착오에 의한 것임을 입증하는 근거는 되지 못한다. 법정 취소 요건을 충족하지 못하면 자백은 유효하게 남는다.
이 장면에서 피고 B의 알지 못한다는 진술이 원고 A에 의해 인정된 진술로 원용되는데, 이 상황만으로 자백 취소의 성립 여부는 확정되지 않는다. 진술의 맥락이나 자백 대상으로 삼은 사실이 불분명한 경우 판단을 유보한다. 이는 판정 조건을 바꾼 검사이며 실제 사건의 추가 사실이 아니다.
이 절의 결론은 좁다. 민사소송법 제288조의 문언은 자백한 사실과 현저한 사실의 불요증 효과, 그리고 자백 취소의 법정 조건을 정한다. 이 문언만을 증명 없이 정해지는 사실과 그 구속의 판정 근거로 삼는다. 판결이유나 다루지 않은 항목으로 확장하지 않으며, 진술의 기억과 신빙성 평가는 다루지 않는다.
5.10Fine Distinctions Within the Stage
이 장면에서 자백 대상으로 삼은 사실이 무엇인지, 그리고 그 진술을 없앨 수 있는 조건이 무엇인지가 문제로 남는다. 앞 절은 진실에 어긋나고 착오에 의한 자백이라는 법정 취소조건을 충족해야 한다고 정리했고, 그 근거는 민사소송법 제288조의 문언이다. 이 절은 그 문언이 말하는 자백 취소의 뜻을 밝힌다.
이 조건은 제288조가 직접 정한다. 해당 조문은 "그것이 착오로 말미암은 것임을 증명한 때에는 취소할 수 있다"고 선을 긋는다(민사소송법 제288조). 문언상 취소의 주체는 자백을 한 당사자이고, 그 행위는 자백의 효력을 제거하는 청구가 아니라 법원에 대한 취소의 주장이며, 조건은 자백이 진실에 어긋나고 착오로 말미암았음의 증명이다. 조문은 이 밖에 증명책임의 배분이나 증명의 정도에 관한 다른 쟁점을 다루지 않는다.
따라서 자백 취소는 법정 요건 아래 자백의 효력을 제거하는 것을 뜻한다. 여기서 두 가지가 구분되어야 한다. 하나는 자백 자체가 진실에 어긋난다는 사정이고, 다른 하나는 그 자백이 착오에서 비롯되었음을 증명하는 사정이다. 전자만으로는 자백이 취소되지 않고, 후자까지 갖추어져야 법정 취소조건이 충족된다. 실수였다는 주장이 아니라 실수였음의 증명이 요구되는 이유가 여기에 있다.
가장 강한 반론은 증명의 어려움을 겨눈다. 당사자가 자신의 자백이 실수였음을 입증하기는 쉽지 않고, 입증이 부족하면 실제와 다른 사실이 재판의 기준으로 남을 수 있다. 그 결과 당사자가 실제로 인정하지 않은 사실을 전제로 판단받게 되는 불편과 손실이 생기고, 실체적 진실과 다른 결론이 고정될 위험도 남는다. 소송 중에 자백이 불리하게 작용한다는 것을 깨달았다는 사정은, 그 자백이 처음부터 착오에 의한 것이었음을 보여주는 자료와 같은 것은 아니다.
이 장면에서 원고 A가 원용하는 진술은 피고 B가 사실을 모른다고 답한 것이다. 이를 인정한 진술로 기록한 것이라면 자백 취소의 법정 조건을 검토할 여지가 생기고, 이를 다툰 것으로 기록했다면 다른 규칙이 작동한다. 만약 알지 못한다는 진술을 인정한 것으로 기록한 것이 확인되면 다툰 것으로 추정하는 규칙에 따라 결론이 달라진다. 그러나 장면만으로는 착오의 존재나 그 증명 여부가 확정되지 않는다. 그 기록의 내용은 미확정으로 남는다.
자백 취소는 법정 요건을 충족한 경우에 한해 자백의 효력을 제거하는 것이며, 실수였다는 주장만으로는 성립하지 않는다. 자백이 진실에 어긋나고 착오에 의한 것임이 증명될 때에만 취소가 허용되고, 증명이 부족하면 자백은 그대로 남는다. 이 경계를 넘는 결론은 이 절이 허용하지 않는다. 증명 없이 정해지는 사실과 그 구속의 작동과 차단과 미확정은 어떻게 구별되는가?
5.11Synthesis of Effectiveness, Blockage, and Undetermination
앞서 실수였다는 주장만으로 자백을 없앨 수는 없는지 살펴보았다. 이제 한 발짝 물러나, 증명 없이 정해지는 사실이 어떤 절차에서 열리고 어디서 막히는지 살펴보자. 이 진술이 어떤 모습으로 기록되었는지에 따라 판단의 출발점이 달라진다.
민사소송법 제288조는 이렇게 선언한다. 「법원에서 당사자가 자백한 사실과 현저한 사실은 증명을 필요로 하지 아니한다. 다만, 진실에 어긋나는 자백은 그것이 착오로 말미암은 것임을 증명한 때에는 취소할 수 있다.」 여기서 말하는 주체는 법원에서 진술한 당사자이고, 대상은 그가 자백한 사실과 현저한 사실이다. 이 조문은 자백과 현저한 사실을 나란히 두고 증명 면제의 근거를 제시한다.
이 문언은 자백 취소를 '법정 요건 아래 자백의 효력을 제거하는 것'으로 한정한다. 따라서 자백은 당사자가 스스로 말한 사실을 굳히는 수단이고, 취소는 그 굳힌 효력을 법이 정한 두 가지 조건을 통해서만 걷어내는 통로다. 실수를 주장하는 자는 그 자백이 진실에 어긋나며, 그 어긋남이 착오에서 비롯되었음을 증명해야 한다. 이 두 요건을 각각 따로 보아야 하는 이유는, 전자가 자백 내용의 오류를 겨냥한다면 후자는 그 오류가 생긴 경위를 겨냥하기 때문이다. 법원은 이 둘을 합쳐 판단하지 않고, 하나라도 비면 자백은 살아 있는 채로 남는다.
가장 강한 반론은 이렇게 물어온다. 자백 내용이 실제와 다르다는 사실을 당사자가 알려도, 그 안에 숨은 마음속 착오까지 법정에서 입증하는 일은 만만치 않다. 이로 인해 손해를 볼 수 있는 것은 소송 결과의 정확성이고, 그 부담은 고스란히 자백한 당사자의 몫이 된다. 자백이 B에게 불리하게 작용한다는 깨달음은, 그 자백이 착오에서 나왔다는 증명과는 별개의 사정이다. 법원은 전자만으로 후자를 대신하게 두지 않는다.
합성 장면으로 돌아와 보자. '모른다'는 답변과 '인정했다'는 기재 사이의 간극이 무엇을 가리키는지, 진술의 맥락이나 자백 대상으로 삼은 사실이 분명하지 않으면 판단의 재료조차 잡히지 않는다. 이런 경우에는 열리지도 막히지도 않은 미확정 상태로 남겨야 한다. 다만 이 대조는 기록이 어떻게 남았는지에 따라 갈리는 판정 조건일 뿐, 실제 사건의 결과를 예언하지 않는다.
이 절이 허용하는 결론은 명확한 형태를 갖추어야 한다. 자백 취소의 법정 조건을 충족해 그 효력을 제거한 경우에만 그 사실을 다시 부정할 수 있고, 그렇지 않으면 재판상 자백은 유효하게 남아 그 사실을 다시 부정하는 통로는 막힌다. 진술의 맥락이나 자백 대상이 불분명하면 결론을 유보하고, 자료가 부족하다는 이유만으로 구제가 불능하다고 단정해서는 안 된다.
5.12Conclusion Carried Over to the Next Section
이런 사정 아래 실수였다는 주장만으로 자백을 없앨 수 있는가? 아래에서는 이 물음에 한정하여, 다음 절로 넘길 판단의 위치까지 밝힌다.
이 문제에 해당하는 법문은 민사소송법 제288조이다. 조문은 "법원에서 당사자가 자백한 사실과 현저한 사실은 증명을 필요로 하지 아니한다"고 정하고, 이어 "진실에 어긋나는 자백은 그것이 착오로 말미암은 것임을 증명한 때에는 취소할 수 있다"고 단서를 둔다. 여기서 법원을 기준으로 "당사자가 자백한 사실"이란 소송에서 한 진술을 말하며, 그 대상과 조건은 문언에 정해져 있다.
위 문언에 비추면 자백을 되돌리기 위한 근거와 그 효과는 두 단계로 나뉜다. 먼저 자백이 성립한 사실을 증명 없이 받아들이는 것과, 이미 받아들인 자백을 취소하는 것은 별개의 판단이다. 자백 취소는 법정 요건 아래 자백의 효력을 제거하는 것을 뜻하며, 진실에 어긋나고 착오에 의한 자백이라는 법정 취소조건을 충족해야 한다. 따라서 단지 진술이 불리하게 기록되었다는 사정만으로 자백이 이미 없는 것으로 되돌아가는 것은 아니다.
자백 취소 요건이 이런 식으로 구성된 데에는 실수를 증명하기 어려워 실제와 다른 판단이 남을 수 있다는 불편이 따른다. 정말 착오였던 진술이 그대로 자백으로 굳어져, 그 사실을 근거로 판단이 내려진다면 당사자 입장에서는 손해가 구제되지 않은 채 남는다. 그러나 저자의 답은 분명하다. 불리하게 작용할 가능성을 인식한 것은 착오로 말미암았다는 점을 입증한 결과와 같지 않기 때문이다.
합성 장면에서 확인할 수 있는 사실은 피고 B는 사실을 모른다고 답했는데 원고 A는 이를 인정한 진술로 원용한다는 것뿐이다. 이 사정만으로는 진술의 맥락이나 자백 대상으로 삼은 사실이 분명하다고 할 수 없어, 자백 취소 주장에 필요한 착오 자료가 어떤 것인지는 이 절에서 확정할 수 없다. 반면 알지 못한다는 진술을 인정한 것으로 기록했다면 다툰 것으로 추정하는 규칙에 따라 결론을 고치는 대목은, 이 절의 범위와는 다른 판정 조건의 변경에 해당한다.
이 절에서 허용되는 결론은, 자백을 없애려면 단순한 불리함이 아니라 진실에 어긋나고 착오에 의한 자백이라는 법정 취소조건의 충족을 요구한다는 점이다. 허용되지 않는 것은, 착오가 입증되지 않았는데도 자백의 효력이 당연히 소멸한 것처럼 다루는 판단이다. 자백이 유효하게 남아 있고 법정 취소 요건을 충족하지 못해 그 사실을 다시 부정하는 통로가 막힌 경우에는 미확정이나 구제 불능이 곧바로 되는 것도 아니다.