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KCI등재 학술저널

소의 교환적 변경과 자백의 효력

대법원 1997. 4. 22. 선고 95다10204 판결을 중심으로

This case involved a confession by the defendant to the claims asserted by the plaintiff in the first action. The plaintiff filed a new complaint and dismissed the old complaint through an exchangeable change of claim. The key point of the judgment in this case was that the defendant's confession was extinguished by the plaintiff's withdrawal of the complaint. While the main legal reasoning of this case is reasonable, there are a few more points to consider. First, the concept of revocation of a confession should be replaced with the concept of lapse of a confession. In this case, the confessing individual is not extinguishing his confession for reasons that would otherwise be attributable to himself. The confession was extinguished because of the exchangeable change of claim, which should be viewed as an effect of lapse of confession. Second, if the confessor relied on the confession as a defense in a lawsuit before the exchangeable change of claim, it does not extinguish the prior trial confession. This is because the act of procedure has already been formed based on the trial confession and it is necessary to ensure legal stability. It is also noted that the opposite party's consent to the exchangeable change of claim does not include consent to the revocation of the confession, unless there are special circumstances.

Ⅰ. 서론

Ⅱ. 재판상 자백에 대한 일반 법리 검토

Ⅲ. 이 사안과 관련된 쟁점 검토

Ⅳ. 결론

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