Summary
Facts stated in the reasoning of a related civil judgment may serve as strong evidence, but they are not in themselves facts notorious to the court.
6.1The Standard by Which the Path Opens
If facts from another case are carelessly brought over, the opportunity to rebut in this case is lost. The preceding section concluded that, in order to set aside a confession, the statutory revocation condition of a confession contrary to the truth and made by mistake must be satisfied. Once this conclusion is accepted, the problem becomes whether a court that, in this case, faces together facts not contested by the parties and facts stated in the reasons of another judgment may handle those facts in the same way.
Precedent has made clear that, beyond the existence of a final and conclusive judgment in a civil action between the defendant and a third party, even the facts constituting the reasons for that judgment cannot be regarded as notorious facts to the court (Supreme Court Decision 2019Da222140 decided August 9, 2019). This language organizes the matter by taking the subject to be the civil action between the defendant and a third party and the objects to be the existence of that final and conclusive judgment and the facts constituting the reasons for the judgment. The determination of a notorious fact cannot be given to those facts.
A notorious fact means a fact obvious to the court that requires no separate proof. The reason the item of the existence of a final and conclusive judgment must be divided from the item of the facts stated in the reasons for the judgment is that the former is the existence of an external record that the court can verify, whereas the latter is the material of the judgment contained within that record. Facts carried over as material do not thereby turn into facts requiring no separate proof; accordingly, the mere circumstance that a fact was stated in the reasons for the relevant judgment does not remove it from the proof in this case.
If facts already settled are tried again, costs are duplicated, and in the sense that repeated re-examination of the same facts in the same dispute must be prevented, the burden in fact increases. Even so, the author maintains the conclusion, answering that the facts in the reasons for the relevant judgment cannot be automatically converted into facts not requiring proof. The inconvenience that costs are duplicated is a matter separate from the method of weighing those facts as persuasive evidence, and within the scope corresponding to this section that basis does not carry through.
In the synthetic scene, Defendant B answered that he did not know the fact, and Plaintiff A invokes this as a statement admitting it. In this scene, where the content of the statement and the direction of the invocation diverge, one must confirm, through the parties' statements of examination record, answer briefs, claims for revocation of confession, and materials on mistake, what fact was taken as the object of the confession. If a statement of not knowing was recorded as an admission, the conclusion is corrected under the rule that presumes it was contested. With this scene alone, however, the parts where the context of the statement is not settled remain undetermined.
What is permitted in this section is distinguishing the requirements for confession, contest, and notorious fact, and up to the judgment that, where the statutory conditions for revocation of confession are satisfied, this is reflected and the entrance to this remedy opens. What is not permitted is the conclusion that places the facts stated in the reasons for the relevant judgment as, in themselves, facts obvious to the court.
6.2The Conditions That Block Relief
It is precisely this unease that opens the present question. Are the facts stated in the relevant judgment also notorious facts? Following that conclusion, the statutory revocation condition of a confession contrary to the truth and made by mistake must be satisfied. This conclusion conveys only the existence of the revocation condition and does not unfold again the preceding argument that dealt with that condition. Whether facts already dealt with in another trial may be accepted in this case without proof, and what conditions bar such acceptance, are determined here.
There is one passage that answers this question. The relevant phrase in Summary of Decision [1] of Supreme Court Decision 2019Da222140 decided August 9, 2019 reads: "Beyond the existence of a final and conclusive judgment in a civil action between the defendant and a third party, even the facts constituting the reasons for that judgment cannot be regarded as notorious facts to the court." Here 'the civil action between the defendant and a third party' is the subject and the scope of the case, 'the existence of the final and conclusive judgment' and 'the facts constituting the reasons for that judgment' are objects separated from one another, and 'cannot be regarded as notorious facts to the court' is the conclusion of the determination reaching the court. The language requires one to read apart the existence of the document that is the final and conclusive judgment and the facts stated within that judgment. This phrase touches the meaning of notorious fact established earlier, namely the definition of a fact obvious to the court that requires no separate proof.
Connecting this language with the conclusion of this section reveals the reason for that distinction. The existence of a final and conclusive judgment is an external fact that can be separately verified, but the facts stated in the reasons for that judgment are nothing more than the result of the parties contesting and the court determining in another case. Therefore they cannot be automatically treated as facts obvious to the court, that is, notorious facts requiring no separate proof. This distinction forms the criterion of decision. Where a judicial confession remains validly in place and, the statutory revocation requirements not being satisfied, the channel for denying that fact again is blocked, the channel of relief is closed. For the channel of revocation of confession to open, the statutory revocation condition of a confession contrary to the truth and made by mistake must be satisfied. If that condition is not met, the fact cannot be denied on the language alone that the facts of another judgment are not notorious.
The strongest counterargument targets the duplication of costs. If facts already settled are tried again, trial and determination occur once more as to the same facts, and both the parties and the court must repeat efforts already finished. The inconvenience of re-examining materials gathered in a case whose trial has ended is not small. Added to this, the point that it is unjust for a fact differing from reality to hold up this trial solely because of a party's mistake presses in the same direction. Even so, this counterargument cannot go beyond the language. Even then, the facts in the reasons for the relevant judgment cannot be automatically converted into facts not requiring proof. That is because the language requiring the existence of the final and conclusive judgment and the facts within it to be read apart remains as it is. The very purpose of saving costs cannot serve as the ground for passing off the facts of another case as obvious facts of this case.
Contrasting this inconvenience with the scene of Defendant B makes the boundary clear. As to this record, the author writes that, when judging it, one must look at the parties' statements of examination record, answer briefs, claims for revocation of confession, and materials on mistake. Since the object that the language of Supreme Court Decision 2019Da222140 decided August 9, 2019 regarded as not notorious to the court is the facts stated within the final and conclusive judgment of another civil action, it does not overlap with the materials addressing the statement of Defendant B itself. Accordingly, what facts were stated in the judgment of another case cannot become the material of decision in this scene, and how the statement of Defendant B was recorded cannot be determined from this scene alone either. Put differently, if it is confirmed that a statement of not knowing was recorded as an admission, the conclusion must differ under the rule that presumes it was contested; yet from this scene alone that record is not confirmed. Whether the statutory requirements stated above have been satisfied likewise cannot be confirmed from the scene alone, so whether the channel of relief actually opened remains undetermined.
The conclusion this section permits is narrow. Accepting the language that, beyond the existence of a final and conclusive judgment, even the facts within it cannot be regarded as notorious facts to the court, and blocking the facts of another case from automatically rising to the position of being settled in this case without proof, is the full range that closes here. What this sentence does not permit is equally clear. Automatically converting facts among the reasons for another case's judgment into facts not requiring proof is not accepted here, and whether such a fact can be persuasive evidence, as well as under what conditions it is rejected, is outside the scope of this section.
6.3The Boundary That Remains When There Is No Data
While accepting the point that the statutory revocation condition of a confession contrary to the truth and made by mistake must be satisfied, the question now is whether facts a judgment has already tried can be raised to the status of notorious facts. The distinction that the existence of a final and conclusive judgment and the content of its determination cannot be regarded as the same thing is where this question divides.
Facts among the reasons of the relevant civil judgment can be persuasive evidence, but they are not themselves notorious facts to the court. Supreme Court Decision 2019Da222140 decided August 9, 2019 draws the line, stating that "beyond the existence of a final and conclusive judgment in a civil action between the defendant and a third party, even the facts constituting the reasons for that judgment cannot be regarded as notorious facts to the court." The existence of the judgment itself and the facts constituting its reasons are different objects, and for the latter facts also to be regarded as notorious, a separate ground is required.
Accordingly, in this section, where the trial cannot proceed to confirmation, the cause is first distinguished. A matter that cannot be settled for want of materials and a matter that the trial did not determine even though it handled the materials are not the same inability. Where the context of the statement or the fact taken as the object of the confession is unclear, matters in which the material of determination is not specified are left undetermined, distinguished from inability. This is the reason for dividing into two stages that separately consider the requirements for a notorious fact and the statutory conditions for revocation of confession. If at the latter stage the confession has not softened and remains alive, there is no returning to the earlier stage to manufacture a fact anew.
The strongest counterargument points out that trying facts already settled again duplicates costs. The concern is that the trial costs incurred are greater than the benefit obtained, and that having another court re-examine facts the court that rendered the judgment has already sufficiently reviewed is a waste of resources. It is added that, even if the fact was wrongly recorded by mistake, it is unjust to halt the trial because of the error of a single party. The cost problem lying between the purpose of the final and conclusive judgment and reality, even if resolved by reducing the trial, cannot become the ground for converting the fact into one requiring no proof.
In this scene Defendant B answered that he did not know the fact, and Plaintiff A invokes this as a statement admitting it. In this case, to judge whether the claim for revocation of confession has been sufficiently made out, the context of the statement and what fact was taken as the object of the confession must first be specified. The records necessary for confirmation are set as the parties' statements of examination record, answer briefs, claims for revocation of confession, and materials on mistake. However, this scene does not mean that the necessary materials have been gathered; it fixes the kinds of materials needed for the judgment. Facts not placed in the scene, such as the results of service or performance in the actual case or the final conclusion of the judgment, cannot be settled here and are therefore left undetermined.
What this section permits is leaving matters for which the materials are insufficient undetermined, and as a result distinguishing facts on which judgment has not concluded from cases where the statutory requirements are not satisfied. It cannot be said that relief is blocked immediately for the sole reason that materials have not been gathered, and conversely, facts not judged to have materials cannot be treated as settled. Insofar as the facts in the reasons for the relevant judgment stop at being persuasive evidence, the statutory requirements cannot be regarded as satisfied: that is the result of this distinction. What follows continues in the direction of examining whether the claim for revocation of confession properly has a basis in mistake, and what fact became its object.
6.4The Records Needed for Determination
What is being asked about this scene is whether the facts stated in the relevant judgment may also be placed as notorious facts, and what records must exist to judge that stage. How far the term notorious fact extends becomes, in turn, the range of the records.
Supreme Court Decision 2019Da222140 decided August 9, 2019 states: "Beyond the existence of a final and conclusive judgment in a civil action between the defendant and a third party, even the facts constituting the reasons for that judgment cannot be regarded as notorious facts to the court." This language looks separately at the existence of the final and conclusive judgment and the facts constituting its reasons. The former is an object the court need not separately verify; the latter remains as material to be dealt with again in this case. The author reads this distinction as limited to the notoriety of facts among the reasons.
The reason for dividing the existence of the judgment from the facts of its reasons is that a notorious fact means, in turn, a fact obvious to the court that requires no separate proof. The description of facts produced by the judgment document does not automatically change into the court's obvious knowledge. The stage decision is made solely on the materials recorded in the parties' statements of examination record, answer briefs, claims for revocation of confession, and mistaken materials. Records absent from these are not filled in by presumption. Only where, within the same records, the statutory revocation condition of a confession contrary to the truth and made by mistake is satisfied is that fact reflected; otherwise, the matter is left exactly as the records point.
If facts already settled are tried again, costs are duplicated, and holding up the trial on account of a mistake in a statement likewise creates no light inconvenience. This loss cannot be eliminated. If the work of determining whether the opportunity to rebut remains in this case is replaced by the description in the judgment document, the party loses the chance to speak about that fact. The invocation by Plaintiff A may be handled as persuasive evidence, but it is not placed as a fact exempted from separate proof.
In this scene Defendant B answered that he did not know the fact, and Plaintiff A takes that statement as an admission and invokes it. Whether these two expressions lie in the same record depends on the work of examining the recorded form of the answer of not knowing and the statement of admission. Where the context of the statement or the fact taken as the object of the confession is unclear, that stage remains undetermined. If it is confirmed that a statement of not knowing was recorded as an admission, the conclusion changes under the rule that presumes it was contested. Since the synthetic scene alone cannot further fix the shape of that record, the boundary is left in place without widening the range of judgment.
The existence of the relevant judgment may be placed as obvious to the court, but the facts constituting the reasons for that judgment are not placed there along with it. Deciding the stage only by the materials remaining in the records, and not dressing up absent records to draw facts over, is the range within which this question ends. To what extent the opposing party may be compelled to produce documents in its possession remains a separate question.
6.5Circumstances That Change the Decision
Up to the previous step, only the standard remained: that the statutory ground for revocation—a confession contrary to the truth and made in error—must be satisfied. On the premise of that standard, the questions remain whether the facts stated in the relevant judgment are also notorious facts, and what change overturns the determination of the existing steps.
Supreme Court Decision 2019Da222140 decided August 9, 2019 states: "Beyond the existence of the final and conclusive judgment in the civil action between the defendant and a third party, the facts constituting the reasons for that judgment cannot be regarded as notorious facts to the court." (Supreme Court Decision 2019Da222140 decided August 9, 2019) This wording narrows the subject it addresses to the civil action between the defendant and a third party. And it treats the existence of that judgment and the facts constituting the reasons for that judgment separately.
The wording of the preceding paragraph treats the existence of the final and conclusive judgment and the facts constituting its reasons as separate things. A notorious fact means a fact obvious to the court that requires no separate proof. Measured against that definition, the existence of the relevant judgment is a matter the court can confirm, but the facts stated within it are not of such a nature as to be accepted without separate proof.
Re-examining facts that have already been finalized duplicates the cost. Re-confirming in this case the facts finalized through examination in another case takes time and effort. A complaint also arises that it is unjust to tie up a trial because of facts that differ from reality, where the party is at fault. The wording that the facts constituting the reasons are not notorious facts prevents that automatic conversion.
In this scene, two records conflict: a statement that one did not know, and a statement that recognized that answer. It is only determined that the party statement record, the answer brief, the claim for revocation of confession, and the error material take the form of certain records; which records were actually obtained remains undetermined. However, where the context of the statement or the fact taken as the object of the confession is unclear, it cannot be said that the condition has been met.
What this section permits is the narrow determination that, beyond the existence of the relevant judgment, the facts constituting the reasons are not to be regarded as notorious facts, and the conditional determination that, if the specified change is confirmed, the step is to be re-determined. The conclusion that automatically converts the facts in the reasons of the relevant judgment into facts not requiring proof is not permitted by this section. Is the opposing party obliged to produce all documents it holds?
6.6The Strongest Counterargument and the Answer
In this scene, Plaintiff A seeks to use Defendant B's statement as material supporting the facts of an already finalized case, and it remains at issue whether Defendant B has any remaining position from which to contest those facts. The reason this problem is raised is that carelessly importing facts from another case eliminates the opportunity to rebut in this case. Here the question is how to meet the counterargument that re-examining facts already finalized duplicates the cost.
In Supreme Court Decision 2019Da222140 decided August 9, 2019, the Supreme Court stated: "Beyond the existence of the final and conclusive judgment in the civil action between the defendant and a third party, the facts constituting the reasons for that judgment cannot be regarded as notorious facts to the court." In this wording, the subject is not the court that handled the civil action between the defendant and a third party, but the subsequent court that seeks to treat the facts of that judgment as notorious facts; and the object is the facts constituting the reasons of that judgment, beyond the existence of the final and conclusive judgment. Accordingly, what this wording prescribes is the direction of the distinction between the fact that the final and conclusive judgment exists and the facts stated in its reasons.
This basis connects with the conclusion of this section. A notorious fact means a fact obvious to the court that requires no separate proof, and being obvious to the court refers to a state in which the court knows it without conducting a separate taking of evidence. The existence of the final and conclusive judgment can be read without separate proof, but the facts that constituted that judgment were merely the object examined in another case and are not obvious to this court. If the two steps are not separated but bound into one, the standard of being obvious to the court absorbs the results of the examination in the other case as they stand.
The loss targeted by the counterargument that re-examining facts already finalized duplicates the cost lies in the re-examination that consumes time and effort. Contesting the same fact twice imposes on the parties and the court the inconvenience of gathering the same materials again and hearing the same arguments again, and there is also concern that it may shake the stable transaction relations already settled by the preceding judgment. Automatic conversion breaks down the standard of being obvious to the court for the subsequent court, whereas the cost problem pointed out by the counterargument remains a separate task, to be handled by treating the reasons of the judgment in the other case as evidence.
The conclusion of this section does not waver even where the statutory ground for revocation of confession—a confession contrary to the truth and made in error—is satisfied. The fact that the facts in the reasons for the judgment do not constitute notorious facts means that the court does not know those facts without proof, and whether the conditions for revocation of confession are met is an issue to be dealt with at a separate step. Whether the material Plaintiff A seeks to use in the scene is the fact stated in the reasons of the relevant civil judgment, or Defendant B's statement itself, and which statement the error material concerns, cannot be determined from this scene alone. Accordingly, this section confirms the conclusion that the facts in the reasons of the relevant judgment cannot be automatically converted into facts not requiring proof, while leaving the content of the error material and the context of the statement undetermined.
What this section permits is the judgment that the fact stated in the reasons of the relevant civil judgment is not a notorious fact in court, and the impossibility of the automatic conversion derived therefrom. Conversely, what it does not permit is the conclusion that the facts of this case can be determined without proof on the strength of the reasons for the judgment in another case alone, and, for the same reason, an interpretation that broadens the definition of notorious facts to include the results of the examination in another case. Its value as probative evidence and the conditions for exclusion are matters to be organized in a separate field of procedure.
6.7The Link to the Application and the Dispositive Part
The admission Plaintiff relies on is a statement that stands upon the facts drawn from a final and conclusive civil judgment laid as its background. That is because facts that a party could have contested in its own case become fixed by the mere wording of a single unfamiliar judgment. This question comes properly into view only when the form of the final and conclusive judgment and the content of the facts that make up the reasons for that judgment are viewed separately.
The subjects spoken of here are the defendant and a third party, and the final and conclusive judgment arising from the civil action that took place between them appears as evidentiary material. Whether that judgment exists and the facts constituting the reasons for that judgment are different objects. That is to say, bringing the latter within notorious facts is a separate problem.
A notorious fact is a term referring to a fact obvious to the court that requires no separate proof, and what this section asks is precisely where to draw that boundary. Even granting that the court recognizes the existence of the final and conclusive judgment itself, the facts recorded within that judgment are not automatically incorporated into the court's obvious knowledge. The reason for separating the two steps is that the scope of facts determined without proof and the binding effect upon those facts are different problems. The premise carried over from the preceding section is that the facts in the reasons of the relevant judgment cannot be automatically converted into facts not requiring proof, and preventing the facts in the reasons of the final and conclusive judgment from flowing into notorious facts is one branch of the work of prohibiting that conversion.
The counterargument that re-examining facts already finalized duplicates the cost squarely targets the practical loss. If facts that have once been adjudicated in a civil action may be overturned again in a new case, the parties must repeat the same dispute and the court must review the same materials repeatedly. This answer does not erase the part favorable to the counterargument. The cost and inconvenience are real, but if, as a means of relieving that inconvenience, the scope of facts determined without proof is widened, the opportunity to rebut disappears for the party that wishes to contest the fact in this case. That place must be taken by the methods of proof and the evaluation of evidence.
In this scene, Defendant B answered that he did not know the fact, and Plaintiff A cites that answer as a statement recognizing it. Let it be assumed that facts from the reasons of another final and conclusive civil judgment are placed alongside it. To organize this judgment as follows—that the facts stated in the reasons of the relevant civil judgment may serve as probative evidence but are not themselves notorious facts in court—means that those facts have not become fixed as obvious to the court. However, whether beyond the status of probative evidence they can be adopted as actual evidence, whether the defendant's denial diminishes their probative force, and, if they collide with other materials, which takes precedence, lie outside the scope of this section and cannot be determined on the specified basis alone.
The conclusion permitted in this section is limited. It is to view separately the fact that the final and conclusive civil judgment exists and the facts constituting the reasons for that judgment, and not automatically to promote the latter to notorious facts in court. What is not permitted is to bring about a situation in which those facts are treated as established in this case without proof. If it is confirmed that the fact was recorded as a recognition of the statement that one did not know, the conclusion must differ under the rule that the matter is presumed contested; however, this is only a question of how the records of contestation are to be read, and it does not broaden the scope of notoriety.
6.8The Scope This Section Undertakes
To do away with a confession, the statutory ground for revocation—a confession contrary to the truth and made in error—must be satisfied. On this premise, the question to be addressed this time is whether the facts stated in the relevant judgment are also notorious facts. At its core is whether facts that appear already settled in another case can be accepted in this case as well without proof.
The relevant literature marks the boundary with the following wording: "Beyond the existence of the final and conclusive judgment in the civil action between the defendant and a third party, the facts constituting the reasons for that judgment cannot be regarded as notorious facts in court" (Supreme Court Decision 2019Da222140 decided August 9, 2019). Here the third party refers to a party other than Plaintiff A or Defendant B, and the facts constituting the reasons for the final and conclusive judgment are the facts recorded as the grounds for the decision in that lawsuit. The wording distinguishes and speaks of the existence of the final and conclusive judgment and the facts constituting the reasons for that judgment.
The reason for separating these two concepts is that what is left as an object to be proved differs. If the existence of the final and conclusive judgment itself and the facts recorded within it are treated as the same, the place where the opportunity to defend in this case has disappeared cannot be filled by the procedure of proof.
The counterargument that re-examining facts already finalized duplicates the cost targets a substantial loss. If the parties and the court revisit a decision already completed, time and resources are spent once more, and when the outcomes diverge, legal stability is shaken as well. Even so, the author answers that the facts in the reasons of the relevant judgment cannot be automatically converted into facts not requiring proof. So long as the distinction is maintained—that they are treated as probative evidence but are not themselves facts obvious to the court—the inconvenience of duplicated examination remains, but the automatic conversion targeted by the counterargument does not stand.
In this scene, Defendant B answered that he did not know the fact, and Plaintiff A cites this as a statement recognizing it. Even if the facts were recorded in the reasons of the relevant judgment in this scene, whether those facts constitute notorious facts has not been determined. Where the context of the statement or the fact taken as the object of the confession is unclear, it remains undetermined.
The conclusion permitted in this section is narrow. It goes no further than establishing the distinction that the facts in the reasons of the relevant judgment are merely probative evidence and are not themselves notorious facts. Advancing in the direction of automatically converting those facts into facts not requiring proof, or a judgment that transplants as they stand the determinations of fact from another case into this case, is not permitted.
6.9Application of the Text of the Provisions and the Holdings of Precedents
In the midst of such concerns, this step asks whether facts stated in another judgment are facts determined in this case without proof—that is, notorious facts.
As to this question, the relevant wording states: "Beyond the existence of the final and conclusive judgment in the civil action between the defendant and a third party, the facts constituting the reasons for that judgment cannot be regarded as notorious facts in court" (Supreme Court Decision 2019Da222140 decided August 9, 2019). Here, the 'facts constituting the reasons for the judgment' are not the already determined fact itself but the facts recorded in the reasons portion of the judgment document. A 'fact notorious to the court' is, as defined earlier, a fact accepted without separate proof, and 'cannot be regarded as' means that such status is not recognized.
Taken as the basis, this wording requires that the existence of the final and conclusive judgment and the facts in its reasons be distinguished. The existence of the final and conclusive judgment is the baseline that this wording expresses as 'beyond which', but the facts constituting the reasons for the judgment cannot, crossing that line, become notorious facts. Facts determined without proof and the binding effect upon them are adjudicated only within the scope this wording permits. If, on the same wording, the former is extended to the latter as well, this becomes an encroachment upon the range prohibited by the wording.
The cost arising from this distinction is heavy. If the facts have already been finalized, re-examining the same facts delays the trial, duplicates materials and time, and makes consistent adjudication hard to expect. In addition, attributing facts that differ from reality to a party's mistake and thereby reopening those facts is likewise an inconvenient matter. That is because automatic conversion eliminates altogether the opposing party's opportunity to rebut in this case.
In the synthetic scene, Plaintiff A cites Defendant B's statement to his own advantage. Yet what the purport of B's answer that he did not know the fact was, and what fact was taken as the object of the confession in that statement, are not clear from the records alone. This record remains in the form of the party statement record, the answer brief, the claim for revocation of confession, and the error material; these merely fix the types and do not signify actual collection. Even compared against the facts stated in the relevant judgment, whether or not those facts are notorious facts may be judged by the foregoing wording, but the statement of the scene itself cannot be substituted with the reasons of another judgment. The range that remains undetermined is left unfixed.
In the end, what this section permits is only the judgment that the facts stated in the reasons for the judgment do not possess the status of notorious facts, and it does not permit moving the facts of the relevant judgment over as facts of this case requiring no proof. Facts determined without proof and the binding effect upon them are judged only within the scope of the relevant wording, and any other fact must be proved separately. If the facts stated in the reasons for the judgment are treated as notorious facts, the opposing party's opportunity to rebut disappears.
6.10Fine Distinctions Within the Stage
그렇게 넘어온 전제는 진실에 어긋나고 착오에 의한 자백이라는 법정 취소조건을 충족해야 한다는 점이다. 이 전제를 흔들림 없이 둔 채로 지금 물을 것은 관련 판결에 적힌 사실도 현저한 사실인가 하는 점이다. 이 정의를 기준으로 삼아 다른 사건의 확정판결에 적힌 사실관계가 이번 사건의 소송에서 어떤 자리를 차지하는지 가른다. 가령 피고 B는 사실을 모른다고 답했는데 원고 A는 이를 인정한 진술로 원용하는 장면에서, 그 진술에 담긴 사실이 어느 판결의 이유에 적혀 있었는지는 관심 대상이 아니다.
관련 판결의 존재와 그 판결이유에 적힌 사실을 나누어 보아야 하는 까닭은 이 문언에 드러난다. 이 문언이 가리키는 주체는 피고와 제3자 사이에 있었던 민사소송의 당사자들이고, 대상은 그 확정판결의 존재 자체와 그 판결의 이유를 구성하는 사실관계들이다. 법원은 앞의 것은 현저한 사실로 보더라도 뒤의 것까지 그렇게 볼 수 없다고 선을 긋는다. 여기서 판단되는 것은 관련 민사판결의 이유 중 사실에 관한 자리이며, 그 판결에 기록된 사건의 승패나 이행 결과가 아니다.
위 문언을 통해 정해지는 것은 단순하다. 따라서 단계 안의 세부 구분은 작동하는 경우·막히는 경우·미확정인 경우 조건에 한정한다. 작동하는 경우는 자백, 다툼, 현저한 사실의 해당 요건을 구분하고 자백 취소의 법정 조건을 충족한 경우 이를 반영한 경우를 말한다. 여기서 현저한 사실이라는 자리는 별도 증명이 필요 없는 법원에 명백한 사실만을 뜻하며, 유력한 증거라는 자리는 그와 나뉜다. 유력한 증거는 사실 인정을 떠받치는 힘을 가진 자료일 뿐, 별도 증명을 면제하는 지위를 얻지 않는다. 두 자리를 섞으면 증명 부담을 다루는 절차가 흔들린다.
이 구분에 드는 비용과 불편은 실제적이다. 이미 확정된 사실을 다시 심리하면 비용이 중복된다는 반론은, 앞의 판결이 충분히 조사해 내린 사실인정을 이번 재판에서 다시 꺼내는 일이 재판을 늦추고 자료를 중복 소모하게 만든다고 본다. 원고 A가 제시하는 다른 사건의 판결문이 이 논리를 대표한다. 게다가 그 기록에 담긴 사실이 이번 사건과 어긋나 보여도 당사자의 실수로 재판이 묶이는 것은 부당하다는 주장이 따라붙는다. 그럼에도 관계는 뒤집히지 않는다. 이유는 앞 절에서 확인한 법정 취소조건에 있다. 진실에 어긋나고 착오에 의한 자백이라는 조건을 충족해야 자백을 없앨 수 있다면, 자백의 자리에 놓일 사실도 같은 법정 관문을 지나야 한다. 다른 판결의 기록이 그 문턱을 대신 넘겨줄 수 없다.
합성 장면으로 돌아가 보자. 이 장면에서 확인할 수 있는 것은 진술의 방향이 뒤바뀌어 기록되어 있고, 그 기록이 자백의 자리에 놓이려 한다는 점이다. 앞의 조건은 자백 취소의 법정 조건을 충족한 경우 그 사실을 다시 부정하는 통로가 열린다는 것이고, 반대로 재판상 자백이 유효하게 남아 있고 법정 취소 요건을 충족하지 못하면 그 통로는 막힌다. 다만 진술의 맥락이나 자백 대상으로 삼은 사실이 불분명한 경우는 아직 미확정인 경우에 머무른다. 만약 알지 못한다는 진술을 인정한 것으로 기록한 것이 확인되면 다툰 것으로 추정하는 규칙에 따라 결론이 달라지며 다른 사건의 판결문이 그 역할을 대신하지 못한다.
이 절이 허용하는 것은 좁다. 관련 민사판결의 이유 중 사실이 이번 사건에서 현저한 사실의 지위를 얻지 못한다는 구별과, 그 사실이 지닐 수 있는 자리는 유력한 증거에 그친다는 설명이다. 단계 안의 세부 구분은 작동하는 경우, 막히는 경우, 미확정인 경우로 적시한 조건에 한정된다. 따라서 확정판결의 존재만을 근거로 그 이유의 사실관계를 증명 없이 정해진 사실로 올리는 결론은 이 절에서 얻을 수 없다.
6.11Synthesis of Effectiveness, Blockage, and Undetermination
그 결론은 진실에 어긋나고 착오에 의한 자백이라는 법정 취소조건을 충족해야 한다는 점이었다. 이 장면에서 법원이 다루어야 할 물음은 따로 있다.
대법원은 이 물음에 대해 다음과 같이 구별한다. 대상은 판결의 존재가 아니라 그 이유를 구성하는 사실관계들이다.
그 문언은 판결의 존재와 판결 이유의 사실을 각각 다른 것으로 다룬다. 앞쪽은 법원이 널리 알 수 있는 사실이고, 뒤쪽은 이번 사건에서 다시 확인해야 할 대상이다. 저자는 이 구별에 따라 판단한다. 다만 어떤 진술이 자백으로 작용하려면 그 대상 사실이 분명해야 하고, 자백을 취소하려면 진실에 어긋나고 착오에 의한 자백이라는 법정 취소조건을 충족해야 한다.
이미 확정된 사실을 다시 심리하면 비용이 중복된다는 반론이 있다. 이 반론은 소송이 오래 늘어지는 불편과 같은 일을 반복하는 낭비를 겨냥한다. 재판상 자백이 유효하게 남아 있고 법정 취소 요건을 충족하지 못했다면 그 사실을 다시 부정하는 통로는 막힌다. 자백 취소의 법정 조건을 충족한 경우에만 그 사실이 반영된다.
진술의 맥락이나 자백 대상으로 삼은 사실이 불분명한 경우 이 절은 미확정으로 남긴다. 당사자 진술 조서·답변서·자백 취소 주장과 착오 자료가 이 구별을 가를 자료다.
따라서 증명 없이 정해지는 사실과 그 구속을 나눌 때 세 가지를 따로 둔다. 열리는 조건은 자백·다툼·현저한 사실의 해당 요건을 구분하고 자백 취소의 법정 조건을 충족한 경우 이를 반영한다. 막히는 조건은 재판상 자백이 유효하게 남아 있고 법정 취소 요건을 충족하지 못해 그 사실을 다시 부정하는 통로가 막힌 경우다. 관련 판결 이유의 사실을 불요증사실로 자동 전환할 수 없다.
6.12이 권의 결론과 남는 물음
자백·다툼·현저한 사실의 해당 요건을 구분하고 자백 취소의 법정 조건을 충족한 경우 이를 반영한 경우에는 그 구속은 작동하지 않고, 재판상 자백이 유효하게 남아 있고 법정 취소 요건을 충족하지 못해 그 사실을 다시 부정하는 통로가 막힌 경우에는 막히며, 진술의 맥락이나 자백 대상으로 삼은 사실이 불분명한 경우에는 미확정으로 남는다. 다른 사건의 확정판결에 적힌 사실을 이번 사건의 사실 인정 근거로 꺼낼 때, 그 사실이 이번 법원에 현저한 사실에 해당하는지가 문제이다. 현저한 사실이란 별도 증명이 필요 없을 정도로 법원에 명백한 사실을 뜻하며, 그 정의는 앞에서 이미 확인한 바 있다. 지금 다루는 것은 피고 B와 제3자 사이에 있었던 다른 민사소송의 확정판결에 기재된 사실관계다.
관련 원문은 그 경계를 다음과 같이 분명히 한다. "피고와 제3자 사이에 있었던 민사소송의 확정판결의 존재를 넘어서 그 판결의 이유를 구성하는 사실관계들까지 법원에 현저한 사실로 볼 수는 없다." (대법원 2019. 8. 9. 선고 2019다222140 판결) 문언이 허용하는 판단은 앞부분과 뒷부분의 구별에 달려 있다. 피고와 제3자 사이에 민사소송의 확정판결이 존재한다는 사실 자체는 법원에 현저한 사실로 인정될 수 있다. 그러나 그 확정판결의 존재를 넘어 그 판결의 이유를 구성하는 사실관계들까지 현저한 사실로 볼 수는 없다는 것이 문언의 뒷부분이 가리키는 한계다. 이 절의 범위는 이 현저한 사실이 아니라는 문장에 한정되며, 유력한 증거로서의 가치와 배척 조건은 기판력을 다루는 다른 권으로 넘겨진다.
위 근거와 본 절의 결론은 이유의 사실과 판결의 존재를 나누는 단계 판단으로 연결된다. 다시 말해 다른 판결에 적혀 있다는 사정만으로 그 사실이 이번 사건에서 별도 증명 없이 받아들여지는 지위를 획득하는 것은 아니다. 유력한 증거가 될 수 있다는 평가와 현저한 사실이라는 법적 지위는 서로 다른 판단 단계에 속하며, 이 둘을 섞으면 증거의 신빙성 판단과 증명의 필요성 면제가 구별되지 않는다. 법원에 명백한 현저한 사실은 별도 증명을 요구하지 않는 범위를 정하는 기준이고, 유력한 증거라는 말은 반박이 가능하게 남는 사실 인정의 근거 정도를 나타낸다.
이미 확정된 사실을 다시 심리하면 비용이 중복된다는 반론이 이 구별을 겨냥한다. 관련 민사소송에서 다툼을 거쳐 확정된 사실관계를 이번 사건에서 다시 증명 절차에 올리면, 같은 사실에 대한 심리와 판단이 두 번 이루어져 시간과 비용이 새어 나간다. 실제로 다른 판결의 판단이 잘못된 경우까지 이를 전제로 재판을 진행하도록 강요하는 것도 당사자에게 가혹한 불이익이 될 수 있다. 자동 전환을 허용하면 피고 B는 사실을 모른다고 답한 이번 사건에서 자신의 반박 기회를 박탈당한 채 사실 인정에 이르게 되고, 그 손실은 비용 절감의 이익만으로 상쇄되지 않는다.
이 장면과 앞의 조건을 대조하면 피고 B의 진술이 자백이나 다툼 없는 승인에 해당하는지가 먼저 문제된다. 만약 알지 못한다는 진술을 인정한 것으로 기록했다면 다툰 것으로 추정하는 규칙에 따라 결론을 고친다는 조건에 따라, 기록된 진술의 의미를 오인한 것이 확인되면 다툼이 있었던 것으로 취급하는 쪽으로 판단이 조정된다. 그러나 피고 B가 다른 사건의 확정판결 이유를 끌어오는 과정에서 그 판결의 이유 중 사실이 현저한 사실인지가 문제된 경우에는, 판결의 존재를 넘어서는 사실관계들이 그 자체로 현저한 사실이 아니라는 위 문언이 적용되어 현저한 사실로 인정되지 않는다. 진술의 맥락이나 자백 대상으로 삼은 사실이 불분명한 경우에는 미확정으로 남으며, 앞서 확인한 대로 자백 취소의 법정 조건을 충족한 경우에만 다시 부정하는 통로가 열린다.
이 절의 결론은 관련 민사판결의 이유 중 사실이 그 자체로 현저한 사실은 아니라는 구별까지를 넘긴다. 그 사실을 어떤 지위의 증거로 삼고 어떤 조건에서 배척할지는 이 절이 답하지 않으며, 현저한 사실의 범위를 넓혀 다른 판결의 사실관계를 자동으로 불요증사실로 만드는 결론도 허용되지 않는다. 이 절이 확인한 것은 확정판결의 존재와 그 이유를 구성하는 사실관계를 나누어 판단해야 한다는 경계뿐이다.
Decisions referred to
Questions left open
- 비전문가의 표현을 자백으로 읽는 기준은 얼마나 엄격해야 하는가?
- 대리인의 진술 오류를 어떤 절차로 바로잡을 것인가?
- 디지털 서면의 자동완성이 진술 귀속에 미치는 영향은 무엇인가?