이순동 민사소송의 사실인정과 증인신문기법 진원북스

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민사소송의 사실인정과 증인신문기법

출판사: 진원북스

저자: 이순동 (제3판)

페이지: 824

출간일: 2024-04-15

판쇄: 제3판

ISBN: 9791193983003

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머리말 1
제3판을 내면서
개정판을 낸 지도 3년이 넘게 지났다. 그동안 필자는 로스쿨 교수를 정년퇴직하고 경상북도 자치경찰위원장으로 자리를 옮겼다. 경찰이 무엇인지에 대하여 아무런 사전 지식도 없이 2021년부터 갑자기 시행된 자치경찰제의 핵심 기구인 자치경찰위원회에 들어오면서 평생을 연구해 오던 법률과는 다른 영역에서 많은 값진 경험을 하였다. 지난 3년 가까운 기간 동안은 지방분권과 그에 따른 자치경찰의 필요성, 국민의 사랑과 신뢰를 받기 위한 진정한 민주경찰의 모습과 냉엄한 현실정치의 한 가운대에서 왜곡된 자치경찰제의 시행에 따른 국민 혈세의 낭비와 같은 정치적･행정적 쟁점과 씨름하며 끊임없이 고민해 왔다. 그 과정에서 부족한 지식이지만 국민으로부터 사랑받는 경찰을 위한 희망만으로 ‘자치경찰법 해설(육법사, 2023년)’을 내었으나, 사실인정론에 대하여는 시간적으로나 정신적으로 이를 살펴볼 여유가 없었다. 그러나 경찰업무에 종사하면서도 단순한 법률해석학이 아니라 과학적이고 실질적인 영역이라 할 수 있는 ‘사실인정론’을 연구한 것이 필자에게는 많은 도움이 되었다. 경찰의 현실을 파악하는 것은 사실인정론을 응용하는 기회가 되었고, 국민과 경찰 그리고 행정관료와 정치인을 설득하는데 큰 도움이 되었다. 무엇보다 경찰을 개혁하는데 필요한 마음가짐은 경찰에 대한 사랑과 세상사에 대한 겸허함, 사고의 유연함, 그리고 건강함과 성실성이다. 이를 갖출 때 비로소 편견 없이 현실을 파악하여 이를 바탕으로 국민이 원하는 경찰제도를 수립할 수 있다. 이는 사실인정론의 기본자세와 통한다.
법률가들의 미래가 불확실할 정도로 세상이 급변하고 있다. 책상머리에 앉아서 머리로만
취득한 메마른 지식이 아니라, 생활현장과 과학적 지식 및 인문학적 지식이 결합된 풍부한경험이 기반을 이룬 경험칙을 몸에 갖춤으로써 제대로 된 사실인정을 할 수 있다. 그런 의미에서 과거 사법시험보다는 나름의 경험을 쌓은 사람들이 법률가가 될 수 있는 현재의 로스쿨 제도는 장점이 있다고 본다. 그러나 아직도 법률적 지식만을 우대하는 경향이 완전히 사라지지 않고 있다.
또한 AI의 출현으로 법률지식은 이제 사람의 두뇌 속에 가지고 있지 않아도 컴퓨터가 이
를 거의 완벽하게 저장할 뿐만 아니라. 이를 정확하게 분석하여 결론을 낼 수 있는 상황이 되었고, 그 수준은 시간이 갈수록 더욱 정확하고 치밀하게 될 것이다. 그러나 사실인정은 그 성격상 컴퓨터나 인공지능이 하기에는 많은 한계가 있을 수밖에 없다. 제대로 된 사실인정은 단순한 원피고 사이의 승소나 패소가 아닌 진정한 분쟁해결을 위한 기반이 될 수 있다. 사람을 직접 만나서 설득하고 상처 입은 마음을 치유해줄 수 있는 것은 사람이 아니면 절대 안 되는 일이다.
이제는 법률의 습득도 중요하지만 사실인정을 위한 노력이 필요한 시대가 되었다. 단순한 법률학이 과거의 형이상학과 같은 추상에 머무르는 것이라면, 사실인정이론은 법과학이나 심리학과 같은 자연과학은 물론 인문 사회의 모든 과학을 망라한 영역에 있는 실질적인 분쟁해결을 위한 합리적인 방안이요 법학의 새로운 길이다. 법률가들이 이를 통감하지 않고 과거에만 머물다가는, 분쟁해결은 국민의 기대에 못 미치는 수준에 머물 것이고, 사법부를 비롯한 법조는 결국 이 사회에서 퇴출될 위험도 있다. 위기의식을 가지고 새로운 흐름에 맞는 사법운용이 절실히 필요한 때이다.
제3판에서는 인증신문 방법론에 중점을 두고 보충하였다. 아직까지 당사자주의 소송구조에 완전히 적응하지 못한 우리의 공판절차에서 가장 아쉬운 것이 증인신문 요령이기 때문이다. 형사법정은 물론이거니와 민사법정에서도 법정을 활기차게 하여 법관이 사실인정에 흥미를 가지고 실체적 진실을 발견하는데는 증인신문이 중심이 되어야 하고, 이를 위해서는 증인신문기법을 몸에 익히는 것이 시급하다. 법을 어긴 자에게 관용하는 사회는 결코 건강한 사회가 아니다. 법원은 사회적 평화가 깨어진 분쟁에서, 어느 쪽이 책임을 져야 할 것인지에 관하여, 기초가 되는 사실인정을 정확하고 신속하게 판단할 책무가 있다. 이를 위하여는 법률가는 서증의 정확한 분석은 물론이고, 증인을 제대로 신문하는 기법과 이를 판단할 수 있는 지혜를 갖추어야 한다. ① 개정판에서는 그중에서 특히 ‘반대신문’에 많은 비중을 두었다. 그런데 우리 법원에서 실제로 시행되고 있는 증인신문의 현실에서 볼 때, ‘주신문’이 차지하는 무게가 매우 크다는 점을 감안하여, 제3판에서는 이 부분에 대하여 미국의 법정기법에서 논의되는 유용한 신문기법을 소개하였다. 이는 반대신문에서도 이용될 수 있음은 물론이다. ② 또한 반대신문 중에서도 증인의 신빙성을 탄핵하는 신문기법을 보다 깊이 구체적으로 살펴보았다. 이는 사실인정론의 핵심과도 통하는 중요한 분야이다. ③ 법관의 보다 정확한 사실인정을 위하여 반드시 필요한 것이 전문가의 활용이다. 사회가 복잡하고 기술적이며 전문화된 시대를 맞아 운용이 더욱 확대되고 있는 전문가 증인의 효과적인 신문방법을 자세히 설명하였다. ④ 그리고 당사자주의와 교호신문제도를 정착하기 위한 기초적인 장치인, 공판절차에서 이의(objection)를 활성화하기 위하여 구체적인 이의사례와 대처방법을 추가하였다. ⑤ 최종변론은 배심제를 채택하는 영미법 국가에서는 배심평결을 앞두고 배심을 설득할 수 있는 변호사의 마지막 기회로서 매우 중요한 의미를 가진다. 우리나라에서는 직업법관제를 채택하고 있고, 심리가 주로 준비서면과 서증을 비롯한 서면을 중심으로는 진행되었으므로, 과거에는 민사소송에서 최종변론을 하는 경우가 드물었다. 그러나 이제는 공판중심주의가 활성화되면서 영미와 같은 수준은 아니지만, 최종변론을 하는것이 일반적인 현상이다. 당사자주의와 공판중심주의 아래서는 당사자가 중심이 되어 법정에서 사안의 실체적 진실을 밝혀나가야 한다. 그렇게 함으로써 법정을 생기있게 하고, 국민에게 알기 쉬운 법정이 됨으로써, 사법 불신을 제거할 수 있는 좋은 계기가 될 수 있다.
따라서 사실인정과 법률적용에 관한 마지막 결론을 당사자가 주도할 수 있는 최종변론은
이를 활성화할 필요가 있다. 그래서 최종변론에 관한 항목을 추가하였다.
제3판에서는 미국에서 출판된 Steven Lubet의 Modern Trial Advocacy에서 많은 영감
을 얻었다. 당사자주의 소송구조 아래서 오랫동안 배심을 설득하면서 길러온 미국의 법정기법은 우리에게 많은 참고가 된다.
마지막으로 이번에도 출판사정이 어려운 상황에서도 꼼꼼한 교정과 편집을 해주신 진원북스 편집 관계자분과 이 책이 나올 때까지 많은 성원을 아끼지 않은 진원북스의 양희원 사장님께 다시 한번 감사드린다.
2024년 3월
이 순 동 씀

머리말 / 3
제1장 서 설
제1절 사실인정을 둘러싼 법관의 고뇌와 노력······························································3
제2절 소송상 사실인정의 성질···················································································7
Ⅰ. 역사적 史實과의 관계··································································7
Ⅱ. 과학적 진실과의 관계··································································9
Ⅲ. 뉴스보도 및 평론과의 관계·························································10
Ⅳ. 요 약·····················································································12
제3절 사실인정과 관련된 심리학적 문제점································································ 14
Ⅰ. 휴리스틱(heuristics)·····································································14
Ⅱ. 편 향·····················································································19
제4절 사실인정과 관련된 언어적 문제점·············································· 40
Ⅰ. 법과 언어의 관계······································································ 40
Ⅱ. 법언어학상의 유의점··································································41
Ⅲ. 번역의 문제 - 영문계약서를 중심으로·········································· 52
Ⅳ. 우리 법률언어의 문제점····························································· 67
제5절 재판의 전문성과 비전문성························································ 97
Ⅰ. 절차형성과 실체형성··································································97
Ⅱ. 전문가와 비전문가의 영역·························································· 98
Ⅲ. 판단의 2가지 형태···································································· 98
Ⅳ. 국민의 재판참여 방식에 관한 제언············································ 100
제6절 증거 이외에 사실인정에 영향을 미치는 요인···················································101
Ⅰ. 문제의 소재············································································101
Ⅱ. 사실인정의 창조적 작용··························································· 103
Ⅲ. 변론전체의 취지······································································108
Ⅳ. 구체적 타당성·········································································112
Ⅴ. 소송의 경과와 법관의 심증개시·················································119
Ⅵ. 관련사건의 결과······································································123
Ⅶ. 그 판결이 가져올 영향·····························································125
Ⅷ. 사실인정과 의욕(desire)·····························································133
Ⅸ. 판결이유가 사실인정에 미치는 영향···········································136
Ⅹ. 결 론··················································································· 138
제2장 민사소송의 사실인정
제1절 민사소송에서 사실인정의 특징······································································ 144
Ⅰ. 직권증거조사의 원칙적 금지····················································· 144
Ⅱ. 증명의 대상이 되는 사실의 한정··············································· 144
Ⅲ. 증거조사의 종류･방법의 한정····················································145
Ⅳ. 수사과정과 민사재판과정에서 사실인정의 차이····························145
제2절 사실인정의 대상이 되는 사실의 확정····························································· 146
Ⅰ. 확정해야 할 「사실」································································· 146
Ⅱ. 사실인정의 대상이 되는 사실(쟁점)·············································152
Ⅲ. 쟁점 사실의 확정방법······························································ 155
제3절 증거로부터 사실을 인정하는 판단구조····························································157
Ⅰ. 처음에··················································································· 157
Ⅱ. 서증(Urkundenbeweis)의 경우····················································· 160
Ⅲ. 증언의 경우············································································166
Ⅳ. 움직이기 어려운 사실과 주장사실의 합리성································ 170
제4절 간접사실로부터 요건사실을 추인하는 판단구조················································173
Ⅰ. 증거에 의한 인정과 간접사실에 의한 추인의 관계······················· 173
Ⅱ. 간접사실에 의한 요건사실의 추인 방법······································ 176
제5절 전체상의 파악···························································································· 181
Ⅰ. 나무와 숲을 함께 볼 것··························································· 181
Ⅱ. 時系列表(timeline)·····································································181
Ⅲ. 도식화(diagram)······································································· 182
Ⅳ. 역사적 서술방식······································································182
제6절 사실인정의 정확도를 향상시키기 위한 유의점················································· 185
Ⅰ. 움직이기 어려운 사실(간접사실)의 충분한 파악·····························185
Ⅱ. 증거조사 방식의 연구······························································ 187
Ⅲ. 겸허함의 힘············································································188
Ⅳ. 동료 등과의 논의···································································· 189
Ⅴ. 경험칙에는 언제나 예외가 수반된다는 인식································ 189
제7절 사실인정과 관련된 몇 가지 개념··································································· 190
Ⅰ. 증 명 도················································································ 190
Ⅱ. 경 험 칙················································································ 204
Ⅲ. 추 정··················································································· 230
제8절 각종 증거방법의 증거력···············································································232
Ⅰ. 처음에··················································································· 232
Ⅱ. 서 증··················································································· 233
수 있을 것인가-문서 작성자에 관한 당사자의 주장과 인정의 교차 및 판단 시의 유의점 /
Ⅲ. 인 증··················································································· 307
Ⅳ. 감 정(Gutachten, expert evidence)···············································326
제9절 계약유형에 따른 사례분석············································································ 335
Ⅰ. 처음에··················································································· 335
Ⅱ. 보증계약의 성립여부································································340
있는 경우 / 350
Ⅲ. 매매계약의 성립여부································································365
Ⅳ. 소비대차계약의 성립여부··························································380
제10절 상소심 법관들의 사실인정에 관한 조언························································ 394
제3장 증인신문기법
제1절 증거조사로서의 증인신문과 당사자신문·························································· 413
Ⅰ. 증거조사로서의 특색································································413
Ⅱ. 교호신문제도·········································································· 421
Ⅲ. 증인진술서 제출방식에 따른 증인 조사······································ 426
Ⅳ. 인증(人證)과 사실인정·······························································430
제2절 증명계획····································································································434
Ⅰ. 증명계획의 수립······································································434
Ⅱ. 주신문의 증명계획···································································443
Ⅲ. 반대신문의 증명계획································································451
제3절 신문기법····································································································451
Ⅰ. 신문기법이란·········································································· 451
Ⅱ. 교호신문제도와 변호사･증인····················································· 458
Ⅲ. 교호신문의 전제 문제······························································ 461
Ⅳ. 증인신문에서 유의할 사항························································ 473
Ⅴ. 민사소송의 증거법칙································································478
Ⅵ. 특수한 신문방법······································································494
Ⅶ. 신문 메모 적는 방법································································500
제4절 주 신 문····································································································504
Ⅰ. 주신문이란············································································· 504
Ⅱ. 주신문의 마음자세···································································506
Ⅲ. 증인 예정자와의 면접······························································ 511
Ⅳ. 증거신청, 신문사항의 제출······················································· 520
Ⅴ. 증인의 채부 및 증거조사의 순서 결정········································525
Ⅵ. 신문의 예행연습······································································525
Ⅶ. 주신문의 진행방법···································································526
Ⅷ. 신문 방법에 대해···································································· 533
제5절 반대신문····································································································553
Ⅰ. 반대신문이란·········································································· 553
Ⅱ. 우리나라 반대신문 제도의 특색·················································554
Ⅲ. 반대신문의 목적······································································557
Ⅳ. 반대신문을 어떻게 할 것인가.···················································558
Ⅴ. 반대신문의 준비······································································561
Ⅵ. 반대신문을 할지 여부의 판단 기준············································ 570
Ⅶ. 반대신문기법··································································································573
Ⅷ. 좋지 않은 반대신문·························································································615
Ⅸ. 반대신문의 숙달비결······················································································· 618
Ⅹ. 탄 핵···········································································································621
제6절 그 밖의 문제······························································································662
Ⅰ. 진술서에 관한 문제································································· 662
Ⅱ. 전문가에 대한 신문································································· 665
Ⅲ. 이 의(objections)·····································································691
Ⅳ. 개입신문과 보충신문································································704
Ⅴ. 최종변론(Final Argument)···························································712
제7절 법원의 눈으로 본 신문기법·········································································· 756
Ⅰ. 신문기법의 필요성···································································756
Ⅱ. 성공적인 신문의 요소······························································ 757
Ⅲ. 효과적인 신문을 위한 소송운영의 방식······································ 761
Ⅳ. 대질신문················································································ 767
Ⅴ. 본인소송에서 법관의 신문························································ 767
Ⅵ. 사무관이 바라는 신문······························································ 768
Ⅶ. 신문기법이 필요한 시기의 도래·················································769