The presiding judge of the fact-finding court's duty to explain

The presiding judge of a fact-finding court shall, in all cases where the parties concerned have no proof as the disputed facts, have a duty to urge them to prove if, in light of the degree of litigation, it is evident that the parties concerned are not able to prove due to negligence or misunderstanding.

Article 126 of the Civil Procedure Act

Attorney Lee Jong-il, Counsel for plaintiff-appellant

appellees

Gwangju High Court Decision 85Reu66 delivered on March 30, 1986

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the claimant set up a house without any particular reason in around 1967, and the claimant's work in Japan transferred the amount of one million won in 1971, which was wasteed and transferred at will to the respondent's family unit in the name of the respondent, and the claimant's family unit was not allowed even before April 1972 and January 5, 1973, which was argued by the court below that the respondent was not allowed to move to the relevant authority, but there was no evidence sufficient to recognize the defendant's testimony and the testimony of the court below's non-lied witness's Order, and the claimant's claim was dismissed.

2. According to the records, the testimony of the No. 1 soldier's decoration rejected by the court below is only a trace of the adoption of the facts alleged by the claimant at the court of first instance, and there is no record of the examination of the witness (the records of the first trial are destroyed by the expiration of the preservation period). In such a case, it is obvious that the court below rejected that the testimony of the No. 1 soldier's decoration, which was rejected by the court below, is not subject to any condition that the contents of the testimony should not be known. In such a case, the court below should determine whether to take the testimony, such as re-examination of the above No. 1

3. The presiding judge of a fact-finding court shall, in all cases where there is a dispute and there is no proof, call the parties to prove, in light of the degree of litigation, and even if there is no proof, there is a duty to urge the parties to prove if it is evident that the parties are not proven due to negligence or misunderstanding. According to the records, since documents proving the facts alleged by the claimant are attached to the records, so long as the intention of the claimant is deemed to be submitted as evidence, the court below should urge the submission of evidence, and the measures of the court below that did not reach this point are erroneous

4. Therefore, we reverse the judgment of the court below, and remand the case to the Gwangju High Court which is the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Yoon-tae (Presiding Justice)