민사소송에서 증거신청과 증거채부에 관한 몇 가지 쟁점 사항 검토 - 증거에 관한 당사자권을 중심으로 -

Under the adversary system, plaintiff and defendants are the subject of civil procedure with court. They are able to bring a lawsuit and make a performance of an action. To win the case, they should submit substantial evidence and attack adverse party’ evidence. Parties have rights to evidence such as statement of opinion on evidence, participation in evidence taking. The right of parties to evidence includes an opportunity to present evidences that are material for claims and issues of controversy. The right of parties to evidence is derived from Constitution although the right to be tried in conformity with the Act is a little unclear. In foreign coutries such as German, Japan, the right of parties to evidence is accepted under constitutionality. The illegally obtained evidence has competency of evidence? In the case of illegal telephonic wiretapping and recording, the question of evidence competency is adressed. Competency of illegally obtained evidence should be approached in terms of the parties right to the evidence. Each parties should have a chance for statement of opinion on evidence. Separate and particular legislation is required to solve the issue of illegally obtained evidence. In some cases, even though the parties have filed for evidence, the judge rejects the evidence and does not give a reason. The party has the right to know why the request for evidence was dismissed. The judge should adresse the opinion on dismissed evidence. It is derived from the right of parties to evidence. This can be solved by changing the court practice without having to amend the law.