요건사실론의 연구 – 소비대차를 중심으로 –

Before the establishment and operation of law schools, the teaching of the Elements-of-Fact Theory—which had received almost no meaningful discussion either in traditional colleges of law or in the new law schools—began to reveal differing approaches. In reality, unlike law schools, colleges of law have shown virtually no interest at all in teaching this theory. However, if Elements-of-Fact Theory is understood as a legal theory that occupies an intermediate position between substantive law and procedural law, systematizing and organizing the technical and logical modes of reasoning that govern how substantive law is pleaded and proven through the litigation process under the principle of party disposition, then—regardless of whether the institution is a college of law or a professional law school—it seems unavoidable that all educational institutions must treat this theory as essential and teach it accordingly, especially since it is today regarded as a kind of “golden rule” in legal practice. Nevertheless, even setting colleges of law aside, it remains the case that law schools, unlike the former Judicial Research and Training Institute, generally do not offer Elements-of-Fact Theory as an expressly designated and independent course. Instead, it is most often incorporated merely as a part of certain practice-oriented classes. For this reason, the author emphasizes in this article that, even after the law school system was introduced, there should—just as in the Judicial Research and Training Institute—be dedicated and independent courses on Elements-of-Fact Theory, rather than addressing it only as a partial component. Furthermore, on the basis of this understanding, the author has published several articles in an effort to provide a thorough general examination of Elements-of-Fact Theory. Building on that foundation, the present article examines the Theory as applied to mutuum (consumption loans), one of the specific areas within the more detailed study of the subject. Focusing on claims for repayment of loans (distinguishing between cases with and without a fixed maturity date), ancillary claims, and quasi-mutuum, this article analyzes the relevant elements of fact and concludes by identifying points of caution for the future application of Elements-of-Fact Theory to consumption loans.