[청구이의][공1990.8.15.(878),1577]
The case holding that the court has a duty to ask the plaintiff to prove the cause of deposit in case where the plaintiff submitted only the evidence of the cause of deposit and did not prove that there is no reflective evidence, and the plaintiff failed to prove it.
The presiding judge of a fact-finding court shall, in all cases where there is a dispute and there is no proof, urge the parties to prove it, in light of the degree of litigation, if it is evident that the parties have failed to prove it due to negligence or misunderstanding, even though it is not necessarily required to urge the parties to prove it. In the case where the plaintiff submitted a certificate of deposit as evidence to prove the cause of deposit and received a favorable judgment in the first instance court, and the appellate court has no submission of any other counter-proof evidence, and it is obvious that the court below should urge the plaintiff to prove the cause of deposit, and the court below has to urge the plaintiff to prove the cause of deposit. However, the court below erred in failing to exhaust all necessary deliberation by neglecting the exercise of the right to request explanation because there is no evidence to prove the cause of deposit.
Article 126 of the Civil Procedure Act
[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Dong-young et al., Counsel for plaintiff-appellant-appellee-appellant-appellee-appellant)
Kim Jong-sung
Kim Heung-ok
Incheon District Court Decision 89Na3786 delivered on February 23, 1990
The judgment of the court below is reversed, and the case is remanded to Incheon District Court Panel Division.
We examine the grounds of appeal.
According to the reasoning of the judgment below, the court below rejected the plaintiff's claim of this case seeking the exclusion of executory power of the above judgment on the premise that the plaintiff's deposit of this case does not meet the requirements and thus is illegal and invalid on the ground that the plaintiff's deposit of this case does not meet the requirements and is therefore null and void. The court below rejected the plaintiff's claim of this case seeking the exclusion of executory power of the above judgment on the ground that the plaintiff's deposit of this case is valid.
The presiding judge of a fact-finding court shall, in all cases where there is a dispute and without any proof, urge the plaintiff to prove the cause of deposit, even if it is not necessarily required for the parties to prove it, in light of the degree of litigation and if it is obvious that the parties to prove it due to negligence or misunderstanding (see Supreme Court Decision 86Meu67, Nov. 25, 1986). According to the records, the plaintiff withdraws evidence No. 2 (deposit) as evidence to prove the cause of the deposit of this case at the original time, and the court of the first instance adopted the evidence and has been judged in favor of the court, and the appellate court did not provide any proof of the cause of deposit. In such a case, it is obvious that the court below has to urge the plaintiff to prove the cause of deposit. In such a case, the court below erred by failing to exhaust all necessary deliberations by exercising the right to request explanation without any evidence supporting the cause of deposit.
Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yoon In-tae (Presiding Justice)