민사소송 당사자 및 대리인의 진실의무

In civil litigation dominated by the adversarial system, the submission of false litigation materials by parties or their representatives hinders the discovery of truth, obstructs the rightful adjudication of rights, and causes delays and inefficiencies in the litigation process. Article 138(1) of the German Code of Civil Procedure stipulates that “the parties shall make a complete and truthful statement regarding the facts.” This duty of truthfulness is not an obligation to provide objective and absolute truth, but rather a duty of subjective truth, meaning an “obligation of candor” and a “prohibition of lying in litigation.” Historically, the duty of truthfulness has been a fundamental element in many procedural laws and continues to hold significant importance in contemporary civil litigation governed by the principle of good faith. To ensure sincere and fair conduct in litigation and to implement orderly justice, it is necessary to recognize the duty of truthfulness for parties and their representatives. This recognition does not unjustly restrict the constitutional right to seek judicial relief or the freedom of parties to conduct litigation, nor the freedom of legal representatives to perform their profession. However, attempts to extend the meaning of the duty of truthfullness from “the obligation not to consciously submit false litigation materials” to “the obligation to actively submit all litigation materials necessary for ascertaining the truth” (the theory of general duty of explanation, the introduction of discovery) are undesirable in light of the nature of civil litigation governed by private autonomy and the fundamental principles regarding the burden of assertion and proof. Although Korean Civil Procedure Act does not contain explicit provisions regarding the duty of truthfulness, they recognize a duty of truthfulness similar to that of Germany by legal interpretation. However, the lack of explicit regulations leads to ambiguity in its content, and parties in litigation are often unaware of this duty. Furthermore, due to the lack of sanctions for violations of the duty of truthfulness, this duty fails to function effectively in reality. Therefore, it is necessary to clearly stipulate the content of the duty of truthfulness and the effects of its violation in law. Thus, I propose the introduction of provisions in Korean Civil Procedure Act, specifically Article 134-2, to clarify the content of the duty of truthfulness and to state that fines and detention may be imposed for violations, and Article 100-2 to clearly state that parties may bear litigation costs in cases of violation of the duty of truthfulness.