프랑스증거법의 특징과 서증우선의 원칙

The characteristics of the French law of evidence and the principle of priority of written evidence

The French law of evidence in civil proceedings is governed by both the Code of Civil Procedure and the Civil Code. The former provides for the procedural law of evidence where as the latter sets down provisions on different forms of evidence with respect to specific legal acts. The particular and unique nature of the dualistic structure of French evidence law reflects the French approach towards the law of evidence as a field of law that lies at the crossroads between procedural and substantive law. Similar to Korean civil law, one feature of the French Civil Code is its recognition of informalism in contract formation. However it differs in that with regard to legal acts requiring intent, formalism is reduced by applying the principle of priority of written evidence, thereby recognizing formalism in respect of evidence. Similar to the provisions on the law of obligations, the better part of evidence law in the Napoleonic Code of 1804 was left intact until it was completely revised by ordinance No. 2016-131 on February 10, 2016. Although as a result of the sweeping revision the law of evidence in the Civil Code has been significantly modernized and streamlined, the principle of priority of written evidence that was introduced by the Edict of Moulins (1566) has been left untouched, along with such original forms of evidence as written evidence, testimony, admission and oath that were all recognized under the law of evidence before the revision. The characteristics of French evidence law can also be identified in disputes involving evidence in the Civil Code where the provisions of the Code of Civil Procedure on forgery lawsuits, expert appraisal and opinion evidence are applied. The fact that all but one provision of the Civil Code on testimony was abolished for the sake of harmonization with the Code of Civil Procedure attests to such characteristics of the French law. Ultimately, French evidence law can be defined as a composite outcome of historical developments, French particularities, practical need and other factors.