이행기 정의와 법학방법론: 사실인정과 입증책임을 중심으로

This article deals with the fact-findings and proof of burden in the relief procedures of serious human rights violations by the domestic committees or courts for purging the past. It is virtually impossible for the victims to secure direct witnesses or credible documents in human rights violations that occurred long time ago. In this situation, one of the important methodological issues is how a committee or court should judge if the victims or their families make the prima-facie allegations. It is necessary to analyze the decisions of the Inter-American or European Human Rights Court to evaluate the decisions of the domestic committees or courts. International legal doctrines on this issue might be summarized into four points. First, criminal trial and damage relief procedure must be clearly distinguished, and strict proof required in criminal proceeding is not necessary in damage relief procedure. Second, proof beyond reasonable doubt can be mitigated depending on the specific context and situation. Third, if the state fails to refute the victim's prima-facie claim, the state liability can be recognized as such. Fourth, if state violence was secretly committed or the victim's access to information on human rights violations is blocked, the burden of proof can actually be shifted to the state. Although many courts have shown such human rights-friendly insights in the past two decades of democratic transition, some judges still stick to views that are far from the international trends, as seen in the en banc rulings on human rights violations. Therefore, it can be pointed out that the degree to which international legal doctrines are accepted in domestic courts varies greatly depending on the courts or judges.