제1심과 항소심의 관계 – 독일과 미국의 항소제도와 비교하여 –

In commemmoration of 25th Anniversary of founding of Korea Association of the Law of Civil procedure, I presented the study of the relation between the first instance of court and the appeal court. About 20 years ago, the advisory committee for revision of Korean civil procedure recommended the limitation of submitting new materials in appeal court. I annalysed that the recommended limitation was not enough for that purpose and functioned not well, and researched the discussions about the theme in Germany, and suggested that the stricter limitation was needed to regulate it. But the law was not revised, and present law is same to that law of 20 years ago. From that time on, lots of professors and judges proposed the revision of law for the stricter restriction of submitting new materials similar to German civil procedure law. In this research, I also analysed the American appeal system. In U.S.A. the appeal court gives ‘de novo’ deference to the legal conclusion of the t rial court, and ‘clear error’ deference to i ts fact-finding. And the appeal court gives ‘substantial evidence’ deference, and ‘abuse of discretion’ deference in reviewing the trial court’s decision. At last part of this research, it is showed that it is distinguished between adjudicative fact and legislative fact in America, and different standards of review are applied to each fact. But I analysed that the former is equal to fact, and the latter to law. So I suggest that the former should be treated as fact finding, and the latter as law conclusion in Korea. It shows that the distinction between fact-finding and legal conclusion is not easy both in U.S.A. and in Korea.