디자인등록무효심결 취소소송에서 사실상의 진술과 법률상의 진술 - 대법원 2011. 3. 24. 선고, 2010후3509 판결에 대한 평석 -

The Korean Supreme Court(KSC), on 24th March 2011, ruled that "it would be contrary to ‘the principle of party’s duty to submit facts’ for the Court to judge based on the legal elements which is not asserted by parties." Such a ruling is problematic because it contradicts to the common view and KSC's precedents which explain the ‘principle of party’s duty to submit facts’ as a principle which is related only to facts, not legal elements. The 'method of legal syllogism' which strictly requires the differentiation of legal assertions and factual assertions. However, the court often confuses legal issues with factual issues, although it uses the method in practice. The KSC judgment reviewed in this paper is also confused in applying ‘the principle of party’s duty to submit facts’ because it does not strictly distinguish legal assertions from factual assertions, which is commonly done in the bench and bar today. The judgement does not seem to be refraining from a legal-syllogism-based methodology and trying a new method based on a new interpretation of ‘the principle of party’s duty to submit facts’ discussed in recent years. Until the new method to replace the current legal-syllogism-based method is introduced in the Civil Procedure, however, it is necessary to understand the methodology of legal syllogism more throughly and make clear the difference between the concept of elemental facts and facts matching with legal elements (the so called consequential facts). Furthermore, more research will be required from both the academia and the legal professions for the new methodology to be fully developed.