보전소송에 있어서 소명책임과 본안소송에서의 증명의 정도에 관한 고찰

In general, it is generally accepted that the controversy over the responsibility of the vindication in the trial process of the civil preservative procedure is fully affirmed the application of the principle of distribution of general burden of proof. It is the expansionist argument that the principle should be rejected and as a new position of the allocation of burden of proofs will adopted and call the facts of the rights as well as the facts of the opposition in the workplace of civil trial. It is categorized as a compromise on conflicting views which uses both viewpoints whether the opponent’s opinion statement opportunity have present. Even if the complainant’s unilateral allegation alone presupposes in the act that the order of preservation is judged, the court is required to highly guarantee the validity of the hearing. It is reasonable to solve this problem from a eclectic standpoint because it makes it more difficult to protect the rights of the applicant than necessary. However, in the German vindicative responsibility theory, it is not the generalization of the doctrine as a result of theoretical explanations of the expansion of the responsibility of the vindication. Rather, it has been confirmed that the feasibility is approved by minimizing the expansion of the responsibility of the vindication. If we conclude the theory of the responsibility of the vindication in our legal system, the usual rules of distribution of burden of proof are reasonable in the bilateral adversarial process. It is a great disadvantage to be forbidden to the applicant to be transferred only because the responsibility of the vindication for ignoring the counter argument of the opposing party is a trial reason for the process of preservative measures despite the opponent having an opportunity to argue. Therefore, if the opponent does not have a chance to comment on the application of petition, the responsibility of the vindication must be considered to expand. This means that the responsibility of the vindication for the petition has not been disadvantageous to the applicant. In this case, the preservation process is a purely one-sided process (ex-parte) and there is no problem of distribution of responsibility of the vindication. As far as I think so, I have to understand that the scope of expansion extends to all the counter argument facts that can be theoretically supposed. However, it does not mean that a temporary order can be issued by the complainant must be argued all the counter argued facts and proved entire facts. The impact of the debate on German vindication responsibility theory on Korean law seems to be due to the fact that the center of controversy over the vindication of civilization matched the concerns of our practice of urging the call for the non-existing of counter-argument of claim. It would appear that this article examines German law and looks at practical implications. However, as a theory for the validity of the practice, we have to wonder whether it is right to pass on any discussion of the responsibility of the vindication theory of the German law at present. It is hard to say that the situation of expanding the responsibility of the vindication is theoretically revealed, nor is the responsibility of the vindication theory been made with the intention to directly support the operation of the similar practice. At the present moment, even if it leads to discussion, is it not an intention of being separated from the theoretical context? Therefore, the future task will be to clarify the meaning of expansion of responsibility of the vindication. Therefore, it is necessary to examine why the tendency of avoiding the expansion of the responsibility of the vindication is caused, and the object to be examined at this time will be the temporary order of prohibition of the competition law.