證言對價 지급약정과 反社會秩序 법률행위

Whereas the testimony of witness plays a great role in the civil proceedings, ensuring witness to give high quality testimony which is helpful to the formation of conviction by judge in the process of fact finding is very difficult. It is because evasion phenomena of court testimony prevailing over our total society. As the importance of witness grows, it is necessary to take effective measures about evasion phenomena of witness. These circumstances do not get resolved only by abstract provisions of duty of witness under the Korean Civil Procedure Law. Compelling duty of testimony by law would give rise to infringement of right to self-determination as one of the fundamental rights of the Korean Constitution. As a solution to these problems, it is necessary to seek ways to respect autonomous decision making between party to a lawsuit and witness. The precedents of the Korean Supreme Court follow that the agreement to provide money for testimony shall be null and void as juristic act of anti-social transaction under the Korean Civil Law article 103, by linking up citizens' judicial participation with rewards, which by comprising so-called non-purchasable and non-relativity to rewards, brings about infringement on essential content of judicial action. But because, as general clause, the legal principle of anti-social transaction is accompanied to judgement of policy, on the basis of national or social sense of those days, it should be applied to the complementary and last measures, in case we cannot get a valid solution with other stipulations. In order to regard specific juristic act as anti-social transaction to apply to the Korean Civil Law article 103, it is necessary to acknowledge the fact that it should result in consequences contrary to law and order to keep core value of those days. Civil case is, basically, subject to the principle of private autonomy or principle of freedom of contract. As conditions necessary for conforming to the principle of good morals and other social order stipulated in the Korean Civil Law article 103, for the sake of determining the validity or nullity of specific juristic act, it should reflect social core value in time of conducting specific juristic act. By taking into account the interests of parties concerned, guarantee of free trade, the necessity of regulation and so on, it is, according to conventional wisdom, necessary to decide whether it condemns or not. As mentioned above, it is unreasonable to negate, in all cases, the validity of contract on the payment of testimony as the Korean Supreme Court precedents. So, those precedents should be changed as I assert.