항변3분설에 대한 재검토

Revisiting Issues on Trifurcation Theory of Affirmative Defences

The writer raises several issues laying stress on failure defence of existence of right whose defence belongs to trifurcation theory of defences. Juristic act should satisfy all the requirements irrespective of establishment-related ones or effect-related ones in order to have binding force over the opposite party. When the requirements are classified into two categories such as establishment-related ones or effect-related ones, a troublesome problem follows inevitably whether the bearer of proving those classified requirements also be differentiated according to the character of requirements. Almost all the scholars hold that the proving party about establishment-related requirements does not bear the burden of proving effect-related ones. Instead, they hold that the burden falls on the submitting party asserting the juristic act null and void. The writer does not agree to such holds. The writer’s stressing points are as follows: ① if the effect-related requirements belong to ones of judgment by authority, discussion about apportionment of proof responsibility is not necessary. ② Acts devoid of mental capacity lacks the intent to form legal relation and that lack prevents establishing juristic acts. These reasonings can be extended to other effect-related requirements. Based on these grounds, the writer reaches to the conclusion failure defences of existence of right does not correspond to real defences but to negative assertions. So submitting party’s purpose of such submission can be interpreted as to prevent judges from reaching the level of required degree of conviction. This essay treats several other topics such as postponement defence of right. The writer concludes as follows: presumed defences belonging to postponement defences are quite various, so unified notion of postponement defence of right is hard to hold.