주장책임에 관한 고찰

A Study on the Responsibility for Allegation

In the civil procedure for the settlement of disputes in private laws, the parties shall produce the methods of attack and defense which are necessary for a court(a judge) to render any judgment. The principle of pleading is a basic principle of a deliberation that any parties have to obtain and produce the methods of attack and defense for a judgment on whether or not a claim is justified. It is distinguished from the principle of disposition that parties can determine a commencement and termination of the lawsuit, and an object and scope of a court’s judgment. Because the parties assume the responsibility for allegation, any parties have to allege a fact in issue in the oral proceedings. But it is applied in the hearings that the rule that any party’s allegation is common to other party. In cases where either allege a fact in issue, the court can render a judgment on the merits of the case based on the fact. The principle of pleading is applied to the fact in issue which is necessary for a judgment on whether or not the claim lacks a justified ground. The principle of pleading, especially the responsibility for allegation is based on the principle of party autonomy. When the responsibility for allegation or the rule that any party’s allegation is common to other party is questioned in the lawsuit, the court shall consider whether or not the party has an intention to base the fact in issue on the judgment. The court has to exercise pertinently the right to request elucidation in order to prevent the parties from an infringement of their right to plead.