私鑑定의 訴訟法上 取扱

Even though expert opinion cannot be considered as formal judgment in civil proceedings, if highly sophisticated knowledge or professional knowledge in some special fields. becomes the key for resolving the conflict, and the point is consid-ered that finding a suitable expert who can make judgments regarding such pro-fessional knowledge is not easy, making the party concerned to carry out the ac-tivities of pleading or testifying, and submit to court materials obtained as a re-sult, will help in not only finding the truth of the matter but also settling the conflict. Furthermore, on the code of civil procedure where pleading is allowed, since the party concerned can freely decide how to represent truths and evidences on the procedure, the results of expert opinion obtained from outside the procedure may be claimed in pleading, and it must be viewed that such certificate from expert witness containing the results of expert opinion may be submitted as evidence. If the necessity or permissibility of expert opinion is admitted, how expert opinion is to be dealt with in the code of civil procedure has to be examined, and regarding that, theoretical as well as system application aspects have to be examined. In the theoretical aspect, the fundamental characteristics of expert opinion that it is a testimonial process to reinforce professional knowledge of a lawyer or judgment capability and at the same time, an attack and defending measure for the party concerned have to be considered. Among such qualities of expert opin-ion, depending on where the focus lies, there can be differences in its application method. Specifically, if the focus lies on its quality as a testimonial process, then there have to be stronger restrictions on the evidence being presented, such as the neutrality of the expert witness, than if the focus was on its quality as an attack and defending measure. If the party concerned tries to cite the results of expert opinion at the stage of settling points of contention, the contents may be written on prepared paper and submitted to the court, and if the party concerned submits the results of ex-pert opinion to prove the truth of his or her claims, as long as it is not being used to escape the judgment of the procedure, the certificate from the expert witness may be investigated by the court as written evidence, and when the par-ty who is against the party concerned disputes the appropriateness of the expert witness or the legitimacy of the expert opinion, the expert witness can be inter-rogated as a witness. However, since expert opinion can be used when the judgment of procedure is not appropriate, if the party concerned makes a request for judgment and at the same time, submits a certificate from an expert witness for the same purpose of obtaining proof, then ideally, the judgment should be carried out, and dismissal of request for judgment for the reason that there is a request for certificate from expert witness will not be allowed. Also, to prevent the expert witness, whom the party concerned directly ap-points, from becoming too much like the party concerned, there has to be a strong push not only for a method to secure neutrality and fairness of expert witnesses, and their appropriateness, but also, if the court examines the certificate from expert witness as evidence, it has to reflect on and judge the neutrality and appropriateness of expert witness in the evidence evaluation stage.