추가 적립 안내

제3판에서는 인증신문 방법론에 중점을 두고 보충하였다. 아직까지 당사자주의 소송구조에 완전히 적응하지 못한 우리의 공판절차에서 가장 아쉬운 것이 증인신문 요령이기 때문이다. 형사법정은 물론이거니와 민사법정에서도 법정을 활기차게 하여 법관이 사실인정에 흥미를 가지고 실체적 진실을 발견하는데는 증인신문이 중심이 되어야 하고, 이를 위해서는 증인신문기법을 몸에 익히는 것이 시급하다. 법을 어긴 자에게 관용하는 사회는 결코 건강한 사회가 아니다. 법원은 사회적 평화가 깨어진 분쟁에서, 어느 쪽이 책임을 져야 할 것인지에 관하여, 기초가 되는 사실인정을 정확하고 신속하게 판단할 책무가 있다. 이를 위하여는 법률가는 서증의 정확한 분석은 물론이고, 증인을 제대로 신문하는 기법과 이를 판단할 수 있는 지혜를 갖추어야 한다. ① 개정판에서는 그중에서 특히 ‘반대신문’에 많은 비중을 두었다. 그런데 우리 법원에서 실제로 시행되고 있는 증인신문의 현실에서 볼 때, ‘주신문’이 차지하는 무게가 매우 크다는 점을 감안하여, 제3판에서는 이 부분에 대하여 미국의 법정기법에서 논의되는 유용한 신문기법을 소개하였다. 이는 반대신문에서도 이용될 수 있음은 물론이다. ② 또한 반대신문 중에서도 증인의 신빙성을 탄핵하는 신문기법을 보다 깊이 구체적으로 살펴보았다. 이는 사실인정론의 핵심과도 통하는 중요한 분야이다. ③ 법관의 보다 정확한 사실인정을 위하여 반드시 필요한 것이 전문가의 활용이다. 사회가 복잡하고 기술적이며 전문화된 시대를 맞아 운용이 더욱 확대되고 있는 전문가 증인의 효과적인 신문방법을 자세히 설명하였다. ④ 그리고 당사자주의와 교호신문제도를 정착하기 위한 기초적인 장치인, 공판절차에서 이의(objection)를 활성화하기 위하여 구체적인 이의사례와 대처방법을 추가하였다. ⑤ 최종변론은 배심제를 채택하는 영미법 국가에서는 배심평결을 앞두고 배심을 설득할 수 있는 변호사의 마지막 기회로서 매우 중요한 의미를 가진다. 우리나라에서는 직업법관제를 채택하고 있고, 심리가 주로 준비서면과 서증을 비롯한 서면을 중심으로는 진행되었으므로, 과거에는 민사소송에서 최종변론을 하는 경우가 드물었다. 그러나 이제는 공판중심주의가 활성화되면서 영미와 같은 수준은 아니지만, 최종변론을 하는 것이 일반적인 현상이다. 당사자주의와 공판중심주의 아래서는 당사자가 중심이 되어 법정에서 사안의 실체적 진실을 밝혀나가야 한다. 그렇게 함으로써 법정을 생기있게 하고, 국민에게 알기 쉬운 법정이 됨으로써, 사법 불신을 제거할 수 있는 좋은 계기가 될 수 있다.
따라서 사실인정과 법률적용에 관한 마지막 결론을 당사자가 주도할 수 있는 최종변론은
이를 활성화할 필요가 있다. 그래서 최종변론에 관한 항목을 추가하였다.

머리말 / 3
제1장 서 설
제1절 사실인정을 둘러싼 법관의 고뇌와 노력······························································3
제2절 소송상 사실인정의 성질···················································································7
Ⅰ. 역사적 史實과의 관계··································································7
Ⅱ. 과학적 진실과의 관계··································································9
Ⅲ. 뉴스보도 및 평론과의 관계·························································10
Ⅳ. 요 약·····················································································12
제3절 사실인정과 관련된 심리학적 문제점································································ 14
Ⅰ. 휴리스틱(heuristics)·····································································14
1. 개 요················································································· 14
2. 可用性 휴리스틱(回想 용이성 휴리스틱)········································14
3. 대표성 휴리스틱(representativeness heuristic)································ 15
4. 기준점과 조정(anchoring and adjustment) 휴리스틱······················ 16
5. 감정 휴리스틱(affect heuristic)·················································· 17
6. 라벨링(labelling)····································································· 18
Ⅱ. 편 향·····················································································19
1. 뜻······················································································· 19
2. 종 류················································································· 20
가. 기억 관련 편향 / 20 나. 사회적 편향 / 23
다.인지적？행동적 편향 / 28 라. 학술활동상의 편향들 / 36
제4절 사실인정과 관련된 언어적 문제점·············································· 40
Ⅰ. 법과 언어의 관계······································································ 40
Ⅱ. 법언어학상의 유의점··································································41
1. 일상용어의 사용법과 괴리된 법률용어······································ 41
2. 언어의 주체··········································································42
3. 재판과 지역사투리·································································43
4. 사법통역·············································································· 43
5. 언어에 대한 오해·································································· 44
6. 언어행위의 해석····································································45
7. 상대방 배려와 언어사용························································· 46
8. 언어생활법칙과 위증······························································47
9. 말이 기억에 미치는 영향 - 말이 기억을 바꿀 수 있다················ 49
가. Lofus의 실험 / 49 나. 기억의 구조 / 50
다. 목격증언의 기억의 변용 - 라인업(line-up) 질문 / 51
Ⅲ. 번역의 문제 - 영문계약서를 중심으로·········································· 52
1. 법률문서 번역의 장벽···························································· 52
가. 법률용어의 특징 / 52
나. 법체계의 차이와 법률용어 의미의 차이 / 53
다. 영문법률용어의 특수성 / 55
2. 영문계약서 문례····································································56
가. 계약의 명칭 / 56 나. 구 문 / 57
다. 예문 중에 있는 영문계약서에 특유한 표현 / 57
3. 영문계약서의 번역을 어렵게 하는 특유의 용어나 표현················60
가. 조동사 / 60 나. 때(時)를 표시하는 전치사？부사 / 63
다. 그 밖의 문제 / 65
4. 결 론················································································· 66
Ⅳ. 우리 법률언어의 문제점····························································· 67
1. 서 론················································································· 67
가. 법률언어와 일상용어의 관계 / 67
나.일본어의 영향 / 68 다. 알기 어려운 표현 / 69
2. 민법전 제정과정과 법률용어··················································· 70
가. 의 미 / 70 나. 독일민법전 / 71
다. 일본민법전 / 72 라. 우리 민법전의 제정과 개정 작업 / 74
3. 구체적인 사례·······································································78
4. 결 론················································································· 96
제5절 재판의 전문성과 비전문성························································ 97
Ⅰ. 절차형성과 실체형성··································································97
Ⅱ. 전문가와 비전문가의 영역·························································· 98
Ⅲ. 판단의 2가지 형태···································································· 98
Ⅳ. 국민의 재판참여 방식에 관한 제언············································ 100
제6절 증거 이외에 사실인정에 영향을 미치는 요인···················································101
Ⅰ. 문제의 소재············································································101
Ⅱ. 사실인정의 창조적 작용··························································· 103
1. 사실인정과 판단·································································· 103
2. 사실의 채부········································································ 105
3. 의도적 인정········································································ 108
Ⅲ. 변론전체의 취지······································································108
1. 의미와 연혁········································································ 108
가. 의 미 / 108 나. 연 혁 / 110
2. 변론전체의 취지만으로 하는 사실인정···································· 110
3. 판결이유의 표현·································································· 111
4. 화해와 변론전체의 취지························································112
Ⅳ. 구체적 타당성·········································································112
1. 사실(의사)의 해석·································································113
2. 결론과 조정기능(feed back)····················································114
3. 법적용과 조정기능(feed back)·················································117
Ⅴ. 소송의 경과와 법관의 심증개시·················································119
1. 소송경과·············································································119
2. 심증의 개시········································································ 121
Ⅵ. 관련사건의 결과······································································123
Ⅶ. 그 판결이 가져올 영향·····························································125
1. 개인적 영향········································································ 125
2. 사회적 영향········································································ 132
Ⅷ. 사실인정과 의욕(desire)·····························································133
Ⅸ. 판결이유가 사실인정에 미치는 영향···········································136
Ⅹ. 결 론··················································································· 138
제2장 민사소송의 사실인정
제1절 민사소송에서 사실인정의 특징······································································ 144
Ⅰ. 직권증거조사의 원칙적 금지····················································· 144
Ⅱ. 증명의 대상이 되는 사실의 한정··············································· 144
Ⅲ. 증거조사의 종류？방법의 한정····················································145
Ⅳ. 수사과정과 민사재판과정에서 사실인정의 차이····························145
제2절 사실인정의 대상이 되는 사실의 확정····························································· 146
Ⅰ. 확정해야 할 「사실」································································· 146
1. 사실과 평가········································································ 146
2. 사안의 성질에 따른 판단의 필요성·········································149
Ⅱ. 사실인정의 대상이 되는 사실(쟁점)·············································152
1. 요건사실(Haupttatsache)과 간접사실(indirekte Tatsache)················ 152
2. 요건사실의 구체성······························································· 154
가. 구체성의 문제 / 154 나. 요건사실의 특정 / 155
다. 특정과 구체성의 정도 / 155
Ⅲ. 쟁점 사실의 확정방법······························································ 155
제3절 증거로부터 사실을 인정하는 판단구조····························································157
Ⅰ. 처음에··················································································· 157
1. 직접증거에 의한 사실인정과 간접증거에 의한 사실인정············ 157
2. 증거력(Beweiswert)의 문제····················································· 158
3. 서증(Urkundenbeweis)과 人證(인적증거; Personalbeweis)의 특징······ 158
4. 서증의 중요성과 경험칙과의 관계·········································· 159
Ⅱ. 서증(Urkundenbeweis)의 경우····················································· 160
1. 서증의 종류와 형식적 증거력················································ 160
가. 서증의 종류 / 160 나. 형식적 증거력 / 161
다. 위조문서의 경우 / 161 라. 검증물로서의 성질 / 162
2. 처분문서(Dispositivurkunde)의 경우···········································162
가. 처분문서의 특징 / 162 나. 불완전한 문서의 경우 / 163
다. 차용증서의 경우 / 163 라. 의사표시 도달의 문제 / 164
3. 보고문서(Berichtsurkunde)의 경우·············································164
가. 보고문서의 실질적 증거력 / 164
나. 실질적 증거력이 높은 보고문서 / 165
다. 실질적 증거력이 낮은 보고문서 / 165
라. 보고문서의 신빙성 검토를 위한 자료 / 166
Ⅲ. 증언의 경우············································································166
1. 증언에 의한 사실인정의 기본적 구조······································166
가. 사 례 / 166 나. 기본적인 판단구조 / 166
2. 증언의 의미에 대한 검토······················································ 167
가. 말의 의미 / 167 나. 사실과 평가 / 167
Ⅳ. 움직이기 어려운 사실과 주장사실의 합리성································ 170
1. 사실인정의 방식·································································· 170
2. 사실의 주장과 합리성 판단··················································· 171
가. 합리성의 검토 / 171
나. 「불합리」와 「있을 수 없다」는 개념의 차이 / 171
다. 주장의 합리성과 사실인정 절차 / 171
라. 경험칙과 폭 넓은 상식 / 172
제4절 간접사실로부터 요건사실을 추인하는 판단구조················································173
Ⅰ. 증거에 의한 인정과 간접사실에 의한 추인의 관계······················· 173
1. 직접증거에 의한 인정과 간접사실에 의한 인정(추인)················· 173
가. 둘 사이의 관계 / 173
나. 간접사실로 요건사실을 추인할 수 있는 사례 / 174
다. 추인의 확실성에 관하여 / 175
2. 유 의 점·············································································175
Ⅱ. 간접사실에 의한 요건사실의 추인 방법······································ 176
1. 총 론················································································176
2. 구체적인 예········································································ 177
가. 사 례 / 177 나. 개별적인 인간의 행동법칙 / 179
다. 다양한 접근방법의 고려 / 180
제5절 전체상의 파악···························································································· 181
Ⅰ. 나무와 숲을 함께 볼 것··························································· 181
Ⅱ. 時系列表(timeline)·····································································181
Ⅲ. 도식화(diagram)······································································· 182
Ⅳ. 역사적 서술방식······································································182
1. 역사적 서술방식의 도입························································182
2. 역사적 서술방식의 유의점·····················································183
3. 쟁점별 판단방식의 유의점·····················································184
제6절 사실인정의 정확도를 향상시키기 위한 유의점················································· 185
Ⅰ. 움직이기 어려운 사실(간접사실)의 충분한 파악·····························185
1. 기록의 정독········································································ 185
가. 다툼이 없는 사실의 파악 / 185 나. 서증의 파악 / 185
2. 충실한 쟁점 정리·································································186
3. 상 상 력·············································································187
Ⅱ. 증거조사 방식의 연구······························································ 187
Ⅲ. 겸허함의 힘············································································188
Ⅳ. 동료 등과의 논의···································································· 189
Ⅴ. 경험칙에는 언제나 예외가 수반된다는 인식································ 189
제7절 사실인정과 관련된 몇 가지 개념··································································· 190
Ⅰ. 증 명 도················································································ 190
1. 머 리 말·············································································190
가. 의 의 / 190 나. 증명도의 단계 / 190
2. 우리나라 재판에서 증명도의 의미·········································· 192
가. 대륙법계의 전통 / 192 나. 우리나라 재판에서 증명의 정도 / 195
3. 그 밖의 문제·······································································200
가. 법관의 주관적 확신에 대해 / 200
나. 간접사실 증명의 정도 / 201
다. 가사, 행정 소송의 증명도 / 203
Ⅱ. 경 험 칙················································································ 204
1. 뜻····················································································· 204
가. 경험칙이란 / 204 나. 예컨대, / 205
다. 개연성의 문제 / 205
2. 경험칙의 증명····································································· 205
3. 경험칙의 체계화·································································· 206
가. 경험칙 체계화의 중요성과 방법 / 206
나. 강학상의 체계에 따른 분류 / 207
다. 인간 행동양식에 따른 분류 / 226
Ⅲ. 추 정··················································································· 230
1. 법률상의 사실추정······························································· 230
2. 법률상의 권리추정······························································· 230
3. 사실상의 추정····································································· 230
4. 해석규정·············································································231
5. 잠정진실·············································································231
6. 법정증거법칙·······································································231
제8절 각종 증거방법의 증거력···············································································232
Ⅰ. 처음에··················································································· 232
1. 증거방법의 특성에 따른 증거력 평가······································232
2. 검토의 순서········································································ 232
Ⅱ. 서 증··················································································· 233
1. 민사소송의 사실인정에서 서증의 위상···································· 233
가. 서증의 장점 / 233 나. 실질적인 판단의 중요성 / 233
다. 「점」과 「선」의 역할 / 234 라. 서증의 유형별 검토 / 234
2. 문서의 종류········································································ 235
가. 총 론 / 235 나. 공문서？사문서 / 240
다. 처분문서？보고문서 / 242 라. 원본？정본？등본？초본 / 245
3. 문서(서증)의 증거능력과 증거력(증명력, 증거가치)······················· 248
가. 증거능력 / 248
나. 증거력(증명력 Beweiskraft, 증거가치 Beweiswert) / 249
4. 문서성립의 진정(형식적 증거력)··············································· 250
가. 문서성립 진정의 뜻 / 250 나. 문서의 작성자 / 251
다. 거증자가 문서 작성자를 특정해야 하는가 / 253
라. 거증자가 특정한 작성자가 아닌 다른 사람이 작성한 것으로 인정된 서증을 증거로 사용할
수 있을 것인가-문서 작성자에 관한 당사자의 주장과 인정의 교차 및 판단 시의 유의점 /
256
마. 문서성립 진정의 인정(1)~문서성립의 추정 / 259
바. 문서의 진정성립 인정(2)~반증 등 / 264
사. 문서성립의 진정 인정(3)~문서의 성립에 대한 상대방의 認否 및 자백의 구속력 / 279
5. 서증의 실질적 증거력···························································283
가. 서증의 실질적 증거력의 개념 / 283
나. 서증에 관한 실질적 증거력 판단의 모습 / 284
6. 서증을 검토할 때 실무상의 유의점·········································300
가. 원본의 확인 / 300
나. 서증 자체의 물리적 측면의 검토 / 302
다. 서증의 작성 시기와 관련된 검토 / 304
라. 서증의 내용을 음미하는 관점 / 306
Ⅲ. 인 증··················································································· 307
1. 처음에················································································307
2. 증인의 증언과 당사자 본인의 진술·········································307
3. 증언의 신빙성의 검토방법·····················································308
가. 처음에 / 308
나. 평가 근거의 검토 / 309
다. 증인 자체에 관한 검토-사실의 인식에 대해 / 309
라. 증언내용과 경험칙 / 317
마. 증언내용과 그 사건에서 「움직일 수 없는 사실」 / 320
Ⅳ. 감 정(Gutachten, expert evidence)···············································326
1. 증거조사로서 감정의 개념·····················································326
2. 감정의 대상········································································ 326
3. 감정과 자유심증·································································· 334
제9절 계약유형에 따른 사례분석············································································ 335
Ⅰ. 처음에··················································································· 335
1. 분석대상·············································································335
2. 계약의 성립········································································ 335
가. 계약의 성립여부 / 335 나. 계약체결의 과정 / 339
Ⅱ. 보증계약의 성립여부································································340
1. 처음에················································································340
2. 보증계약의 특색 및 문제점··················································· 341
가. 보증계약의 특색 / 341 나. 거래의 현실 / 341
다. 소송상 유의점 / 342
3. 보증계약의 성립 문제는 소송에서 어떠한 형태로 다투어지나·····342
4. 보증계약의 성립여부를 판단할 때 고려해야 할 사실·················343
가. 처음에 / 343
나. 당사자 간에 서면이 존재하는 경우 / 343
다. 당사자 사이에 서면이 존재하지 않는 경우 / 345
5. 참고 판례··········································································· 348
가. 보증인이 보증계약서(보증문언이 명확한 증서)에 서명？날인한 경우 / 348
나. 당사자 사이에 주고받은 서면에 명확한 보증문언이 없고, 그 밖의 문언이
있는 경우 / 350
다. 당사자 사이에 서면이 존재하지 않는 경우 / 359
6. 민사보증과 어음보증···························································· 361
가. 문제의 소재 / 361 나. 두 가지 판례 / 362
다. 검 토 / 364
Ⅲ. 매매계약의 성립여부································································365
1. 처음에················································································365
2. 매매계약의 성립여부···························································· 366
가. 매매계약 성립 인정 시에 고려해야 할 사실 / 366
나. 참고 판례 / 367
3. 대금이 확정되지 않은 매매계약의 성립여부·····························372
가. 처음에 / 372 나. ‘시가’와 매매계약의 성립여부 / 372
다. 참고 판례 / 373
4. 매매의 목적물····································································· 373
가. 매매 목적물을 인정할 때 고려해야 할 사실 / 373
나. 참고 판례 / 374
5. 매매의 당사자····································································· 376
가. 매매 당사자를 인정할 때 고려해야 할 사실 / 376
나. 참고 판례 / 377
Ⅳ. 소비대차계약의 성립여부··························································380
1. 처음에················································································380
2. 소비대차의 성립 여부를 판단할 때 고려해야 할 사실··············· 380
가. 차용증서의 존부 / 380 나. 실무상의 쟁점 / 381
3. 참고 판례··········································································· 385
가. 백미의 형식을 빌린 금전소비대차 / 385
나. 금전소비대차의 차용인인지 알선자인지 문제가 된 사례 / 385
다. 사인(私人)간의 어음？수표할인의 성격 / 386
라. 보험약관대출의 성격 / 387
4. 소비대차의 당사자······························································· 389
가. 소비대차 당사자를 인정할 때 고려해야 할 사실 / 389
나. 참고 판례 / 390
5. 변 제················································································392
가. 처음에 / 392
나. 변제 유무를 인정할 때 고려해야 할 사실 / 392
제10절 상소심 법관들의 사실인정에 관한 조언························································ 394
1. 의문 나는 점을 우선 ‘당사자’에게 물어볼 것··························394
2. 서증의 성립만으로 결론을 도출하지 말 것·····························394
3. 2단의 추정을 성급하게 사용하지 말 것·································395
4. 서증이 없는 경우······························································· 396
5. 문제 있는 판결문 설시의 예················································ 396
6. 당사자 주장의 사전 조정·····················································397
7. 증거의 종합판단·································································397
8. 진 술 서··········································································· 398
9. 큰 줄거리의 파악······························································· 398
10. 사실인정에서 배경과 경위, 인과관계 등의 중요성···················398
11. 집중심리의 약점································································ 399
12. 논리적인 결론의 위험성······················································400
13. 진술 평가의 관점·······························································400
14. 본인 소송에서의 당사자 신문·············································· 401
15. 원본의 조사······································································ 401
16. 중요한 증인은 반드시 조사할 것··········································401
17. 예단의 배제······································································ 402
18. 무리한 사실인정을 하지 않는다.·········································· 402
19. 좋은 판결문 작성을 위한 조언·············································402
20. 아는 만큼 정리하여 써본다.················································ 404
21. 너무 쉽게 사실을 인정하여서는 안 된다.·······························405
22. 강약(리듬)이 있는 기록읽기··················································405
23. 표의 이용········································································· 406
24. 사실인정을 그르치는 원인···················································406
25. 의문의 제기와 집중심리의 유연화········································ 406
26. 조정과 화해의 경험····························································407
27. 철저하게 심리할 사건의 선별·············································· 408
28. 법원이 무엇을 생각하고 있는지 당사자에게 전한다.················408
29. 진실은 세세한 부분에 숨어 있다.········································· 408
30. 어떤 거짓말에도 진실의 그림자가 있다.································ 409
31. 증거나 간접사실의 전부를 설명할 수 있도록 노력할 것···········409
32. 사실에 대해 집착할 것······················································· 409
33. 증거를 지나치게 요구하여서는 안 된다.································ 409
34. 유형화된 경험칙은 사실인정에 해롭다.··································410
35. 두 가지 판결을 써보는 일···················································410
36. 사실 인정력 향상을 위한 방법·············································410
제3장 증인신문기법
제1절 증거조사로서의 증인신문과 당사자신문·························································· 413
Ⅰ. 증거조사로서의 특색································································413
1. 총 설················································································413
2. 증거방법이 사람일 것···························································413
3. 진술과 신문과의 조합···························································415
4. 진술 구조에 대한 이해의 중요성············································415
가. 진술의 구조 / 415 나. 오류？편견의 혼입 / 416
다. 사실의 전달과 변용 / 418 라. 진술 결과를 검증하는 절차 / 419
Ⅱ. 교호신문제도·········································································· 421
1. 교호신문의 뜻····································································· 421
가. 총 설 / 421 나. 교호신문제도의 도입 / 421
2. 교호신문의 방법·································································· 422
3. 교호신문제도의 문제점························································· 423
가. 교호신문제도 비판 / 423 나. 교호신문제도 비판의 검토 / 423
4. 절차보장과 교호신문···························································· 424
5. 진실의무와 완전진술의무······················································ 425
Ⅲ. 증인진술서 제출방식에 따른 증인 조사······································ 426
1. 증인 조사의 3가지 방식······················································· 426
2. 증인 진술서 제도의 도입 취지와 배경···································· 427
3. 증인진술서 제도의 문제점·····················································428
4. 적극적인 활용과 바람직한 운용············································· 428
Ⅳ. 인증(人證)과 사실인정·······························································430
1. 사실인정을 할 때 주목해야 할 점·········································· 430
가. 인증 증거가치 평가의 핵심 포인트 / 430
나. 진술분석을 통한 ‘진실에 합치한 진술’의 특징 / 431
2. 다섯 가지 검증 방법···························································· 432
제2절 증명계획····································································································434
Ⅰ. 증명계획의 수립······································································434
1. 증명주제의 확정·································································· 434
가. 주요사실 / 434 나. 간접사실 / 438
다. 보조사실 / 438 라. 그 밖의 증명주제 / 438
2. 증명수단의 선정·································································· 439
3. 증명계획 수립의 시기···························································440
4. 증명계획의 도식화······························································· 441
5. 증명계획과 증거설명···························································· 443
Ⅱ. 주신문의 증명계획···································································443
1. 인증의 증명주제 확정···························································443
가. 이미 이루어진 증명의 평가 / 443 나. 인증의 증명대상 / 445
2. 인증 선택의 준비·································································445
가. 관계자의 철저 규명 / 445 나. 출석 가능성 / 445
다. 사전면접 가능성 / 446 라. 우호적 증인과 적대적 증인 / 446
3. 인증의 선택········································································ 447
가. 증인 리스트를 작성하면 다음 작업은 증인의 선택이다. / 447
나. 일반론으로서 다음과 같은 사람은 증인으로 적당하지 않다. / 447
다. 특수한 경우 / 448
라. 면접의 중요성 / 449
마. 증인 선정과 증명주제와의 관계 / 450
4. 인증의 순서········································································ 450
Ⅲ. 반대신문의 증명계획································································451
제3절 신문기법····································································································451
Ⅰ. 신문기법이란·········································································· 451
1. 신문기법의 뜻····································································· 451
가. 교호신문과 신문기법 / 451 나. 신문기법의 윤리성 / 452
2. 신문기법과 「사실」······························································· 452
가. 증인이 말하는 「사실」 / 452 나. 개개의 사실과 복합적 사실 / 456
3. 신문기법의 역할·································································· 457
Ⅱ. 교호신문제도와 변호사？증인····················································· 458
1. 변호사의 역할····································································· 458
2. 증인의 위상········································································ 459
가. 당사자의 증인 - 법원의 증인 / 459
나. 증인의 보수 / 460
Ⅲ. 교호신문의 전제 문제······························································ 461
1. 증인의 편파성에 대해···························································461
2. 교호신문의 청취자가 법관이라는 점에 대해·····························463
가. 법관의 사실인정 과정을 알 필요가 있다. / 464
나. 법관의 심증형성 과정과 가정적 심증 / 464
다. 법관이 입수하는 사실에 관한 정보 / 465
라. 증언의 신빙성 평가 / 466
3. 법관？변호사와 신문······························································467
가. 신문에 관한 견해의 차이와 그 원인 / 467
나. 법관의 신문？변호사의 신문 / 469
다.법관의 사실인정과 당사자의 소송활동 / 471
Ⅳ. 증인신문에서 유의할 사항························································ 473
1. 신문준비의 중요성······························································· 473
2. 변론조서 작성에 대한 배려··················································· 473
가. 직접주의？구술주의 원칙과 현실 / 473 나. 현실적 대응 / 474
3. 법정 예절··········································································· 477
Ⅴ. 민사소송의 증거법칙································································478
1. 증거법칙을 능숙하게 구사할 것············································· 478
2. 민사소송법과 규칙······························································· 479
3. 법률실무가, 특히 변호사의 각오············································ 479
4. 제한의 형태와 활용······························································480
가. 신문 대상에 따른 제한 / 480
나. 개별적이고 구체적이지 않은 신문의 제한 / 484
다. 유도신문의 제한(민소규칙 제91조 제2항) / 486
라. 증인을 모욕하거나 증인의 명예를 해치는 내용인 신문의 제한
(민소규칙 제95조 제2항 제1호) / 490
마. 중복신문의 제한(민소법 제327조 제5항) / 491
바. 의견 진술을 요구하는 신문의 제한(민소규칙 제95조 제2항 제3호) / 491
사. 증인이 직접 경험하지 않은 사실에 대한 진술을 요구하는 신문의 제한
(민소규칙 제95조 제2항 제4호) / 493
아. 그 밖에 필요한 경우 신문의 제한 / 494
Ⅵ. 특수한 신문방법······································································494
1. 문서를 제시해서 하는 신문··················································· 494
가. 문서를 제시하는 경우 / 494
나. 서류에 따른 진술의 제한(민소법 제331조) / 495
다. 문서의 제시방법과 신문방법 / 496
2. 신문할 때 증인에게 행위를 요구하는 것에 대해·······················499
Ⅶ. 신문 메모 적는 방법································································500
1. 메모를 할 필요성·································································500
2. 메모해야 할 사항·································································501
3. 메모의 기법········································································ 501
가. 메모용지 / 501 나. 글자는 크게 / 501
다. 약자？기호의 활용 / 501 라. 포스트잇？marker 등의 활용 / 504
제4절 주 신 문····································································································504
Ⅰ. 주신문이란············································································· 504
1. 주신문의 뜻········································································ 504
2. 주신문의 목적····································································· 505
가. 증명사항과의 관계 / 505 나. 반대신문, 보충신문 등과의 차이 / 505
다. 서증과의 관련 / 505
Ⅱ. 주신문의 마음자세···································································506
1. 증인신문의 어려움······························································· 506
2. 요증사실을 파악할 때 유의할 점············································506
가. ‘증명사항’과 ‘증명의 대상’과의 관계 / 506
나. 법관의 인식 / 507
다. 신문할 사항의 변동 / 508
3. 신문사항을 결정할 때 유의할 점············································508
가. 증인이 알고 있는 내용을 파악하기 어렵다. / 508
나. 표현의 다양성 / 509
다. 법정의 진술과 조서 기재의 차이 / 509
라. 상대방의 반대신문에 대한 대응 / 510
Ⅲ. 증인 예정자와의 면접······························································ 511
1. 신문준비를 위한 면접의 의미················································ 511
2. 면접의 필요········································································ 512
3. 면접의 목적········································································ 512
가. 가장 주된 목적은 그 사람이 알고 있는 내용을 확인하는 것이다. / 512
나. 변호사의 입장에서는 증인 예정자가 어느 쪽 당사자에게 호감을 가지고
있는지 파악할 필요가 있다. / 513
다. 증인의 성격과 능력을 판단하는 것도 중요하다. / 513
4. 면접의 방법········································································ 513
가. 사실관계를 모두 말하게 한다. / 513
나. 기억을 환기시킨다. / 514
다. 중요한 쟁점을 이해시킨다. / 514
라. 증인신문 방식을 이해시킨다. / 515
마. 직접 경험한 사실을 듣는다. / 516
바. 증인의 성격을 파악한다. / 516
사. 반대신문에 대비한 논의 / 516
아. 서증과 증언의 일치 여부 확인 / 516
5. 변호사윤리의 중요성···························································· 517
6. 미리 만날 수 없는 증인 신문의 준비······································519
Ⅳ. 증거신청, 신문사항의 제출······················································· 520
1. 증거신청의 방법·································································· 520
2. 증명할 사실, 신문사항의 기재방법········································· 521
3. 「증명할 사실」 기재방법의 구체적인 예···································522
가. 사 안 / 522
나. 甲이 증거를 신청하는 경우에 증명할 사실 / 522
다. 乙이 증거를 신청하는 경우에 증명할 사실 / 523
4. 신문사항 기재방법의 구체적인 예·········································· 524
가. 2가지 종류의 신문사항 / 524
나. 법원에 제출하는 신문사항 / 524
다. 신문자용의 신문사항 / 525
Ⅴ. 증인의 채부 및 증거조사의 순서 결정········································525
Ⅵ. 신문의 예행연습······································································525
Ⅶ. 주신문의 진행방법···································································526
1. 신문조서의 작성을 위한 배려················································ 526
가. 요약조서의 원칙과 현상 / 526
나. 조서 작성을 염두에 둔 대응 / 527
2. 신문의 구성········································································ 528
3. 신문개시 직전의 배려···························································529
4. 신문 진행시 유의할 점························································· 530
가. 신문 예정시간의 엄수 / 530
나. 중요한 사항에 중점을 두어 신문한다. / 530
다. 증인과 당사자？사건？증명할 사실과의 관계는 맨 처음에 밝힌다. / 530
라. 주신문, 반대신문, 재주신문의 흐름을 염두에 두고 신문할 내용을 잊지 않는다. / 531
마. 중복신문은 피한다. / 531
바. 소송대리인은 냉정하고 객관적인 입장을 견지하도록 노력해야 한다. / 531
사. 증인의 특성을 미리 파악한다. / 531
Ⅷ. 신문 방법에 대해···································································· 533
1. 무엇을 물을 것인가······························································533
가. 청구원인 사실이 아닌, 청구원인으로 구성하기 전의 실제 사실을 묻는다. / 533
나. 증명사항에 대한 형식적인 증언이 있더라도 만족해서는 안 된다. / 533
다. 메모를 이용하는 것도 경우에 따라서는 허용된다. / 534
라. 기억할 수 없다고 생각되는 사항은 신문하지 않는다. / 534
마. 사실을 묻고 의견？주장？판단을 구하지 않는다. / 534
바. 증언이 엉뚱한 방향으로 일탈하는 경우 깨끗이 신문을 중단한다. / 534
사. 증인으로부터 얻을 가능성이 없는 증언은 요구하지 않는다. / 535
아. 내심적 사실의 증명 / 535
자. 지나치게 정리된 신문사항은 피한다. / 535
차. 다른 사실과의 관련도 생각해서 묻는다. / 535
2. 어떻게 물을 것인가······························································536
가. 신문방법 / 536
나. 효율적 신문 / 539
다. 준비한 신문 내용에 구애받지 않고 증언에 맞게 신문한다. / 550
라. 법관을 의식하면서 신문한다. / 551
마. 증인에 대한 배려 / 552
제5절 반대신문····································································································553
Ⅰ. 반대신문이란·········································································· 553
Ⅱ. 우리나라 반대신문 제도의 특색·················································554
1. 제도적인 제약····································································· 554
2. 우리나라의 특수요인···························································· 555
가. 한국인들은 묻고 대답하는 방식에 따른 논쟁의 전통이 없다. / 555
나. 신문자의 준비부족으로 사안의 핵심을 파악할 수 없다. / 556
다. 증인이 대답하기 쉽도록 신문을 하는 방법을 모른다. / 556
라. 의뢰인에게 보여주기 위한 신문이 있다. / 556
Ⅲ. 반대신문의 목적······································································557
1. 반대신문의 목적·································································· 557
2. 반대신문의 숨은 목적···························································557
Ⅳ. 반대신문을 어떻게 할 것인가.···················································558
1. 총 설················································································558
2. 반대신문의 범위·································································· 558
3. 반대신문의 위상·································································· 560
가. 과대평가하지 말 것 / 560 나. 경시하지 말 것 / 560
4. 반대신문 기법의 필요성························································561
Ⅴ. 반대신문의 준비······································································561
1. 총 설················································································561
2. 평소의 마음가짐·································································· 562
가. 소송절차에 능통하고 증거법칙을 이해할 것 / 562
나. 경험칙을 많이 알 것 / 562
다. 인간성과 심리상태에 관한 통찰력을 몸에 익힐 것 / 562
3. 법정에 가기 전에·································································563
가. 철저한 사전준비 / 563
나. 증인의 입장에서 사건을 본다. / 566
다. 조사활동에 노력을 아끼지 않는다. / 566
라. 증거를 수집할 것 / 567
마. 관계자를 만날 것 / 567
바. 증거 등 기록은 쉽게 찾을 수 있도록 정리해 둘 것 / 567
4. 법정에서·············································································567
가. 주신문을 잘 듣는다. / 567
나. 증인의 말투, 태도, 버릇을 잘 관찰해서 진술의 신빙성을 점검한다. / 568
다. 증인의 준비상황을 간파한다. / 568
라. 메모를 할 것 / 568
마. 반대신문을 할 것인지 여부를 판단한다. / 569
바. 주신문에 대하여 이의할 기회를 엿본다. / 569
5. 의뢰인에 대한 사전 설명······················································ 569
6. 여러 명의 대리인이 하는 반대신문·········································570
Ⅵ. 반대신문을 할지 여부의 판단 기준············································ 570
1. 반대신문을 할 것인가···························································570
가. 본인에게 득이 될 것인가. / 571
나. 주신문에서 상대방의 주장에 도움이 될 만한 점이 있었는가. / 571
다. 효과적으로 반론할 자료를 가지고 있는가. / 571
라. 증인이 중립적인가. / 571
마. 반대신문에서 증인의 대답이 예측 가능한가. / 571
2. 반대신문 여부의 판단순서·····················································572
가. 상대방은 증인에게 어떤 사실을 진술하게 하였는가. / 572
나. 그 사실은 요건사실의 관점에서 의미 있는 사실인가. / 572
다. 반대신문을 해서 효과가 있을 것인가. / 572
라. 상대방 변호사의 능력은 어떠한가. / 572
마. 법관의 심증 / 572
바. 증인의 유형을 고려할 것 / 572
3. 반대신문은 가능하면 해야 한다············································· 573
Ⅶ. 반대신문기법··································································································573
1. 반대신문의 마음가짐···························································· 573
가. 반대신문은 주신문의 신빙성을 흔들게 하면 성공이다. / 574
나. 주신문에서 한 답변을 아무런 이유 없이 뒤집기란 거의 불가능하다. / 574
다. 주신문에서 한 증언이 처음부터 끝까지 거짓인 경우는 매우 드물다. / 575
라. 증언을 믿지 않는 것과 증인을 믿지 않는 것은 별개이다. / 575
2. 일반적 주의········································································ 576
가. 템포를 빠르게 한다(speed). / 576
나. 신문방법은 증인의 유형에 따라 바꾼다. / 576
다. 대답이 「예, 아니오」로 가능한 신문을 한다. / 577
라. 증언의 근거？이유는 원칙적으로 묻지 않는다. / 578
마. 지나치게 장황한 반대신문을 하지 않는다. / 580
바. 준비 없이 신문하지 않는다. / 580
사. 주신문의 전부에 대하여 하지 않는다. / 581
아. 이의를 제기 당하지 않도록 한다. / 581
자. 어디에서 신문을 마칠 것인지, 기준을 터득한다. / 581
차. 실패한 경우는 빨리 포기하고 다음 신문으로 넘어간다. / 584
3. 반대신문기법 각론······························································· 584
가. 어떤 신문부터 할 것인가 / 584 나. 논쟁형과 자료인출형 / 586
다. 증인의 특성에 따른 대응 / 586
라. 증인의 당황한 기색을 조서에 기재하도록 노력 / 587
마. 반대신문에 대해 상대방이 이의하거나 법관이 제한하는 경우 / 588
바. 법관의 개입신문을 피하기 위한 표현의 연구 / 588
사. 신문에 앞서 주제는 말하지 않는 편이 좋다 / 589
아. 유도신문의 활용 / 594
자. 증인에게 「신문자가 만만찮구나」라는 느낌을 갖게 한다. / 595
차. 증인에게 주도권을 주지 말 것 / 596
카. 상대를 흥분시키거나 적대감을 표시하게 만들면 성공적인 반대신문이다. / 596
타. 의견(추측이나 동의)을 요구하는 경우 / 596
파. 「기억에 없습니다」라는 대답은 그냥 넘어가서는 안 된다. / 600
하. 긁어 부스럼 만드는 결과를 초래하는 신문은 하지 말아야 한다. / 600
거. 신문의 범위를 넘어 대답하려는 경우는 바로 중지시킨다. / 601
너. 침묵하는 증인에 대한 압박 / 601
더. 언어의 미묘한 차이에 유의한다 / 601
러. 반대신문에서 의외의 답변이 나왔을 때의 대응방법 / 603
머. 전부부정의 질문과 부분긍정의 질문 / 604
4. 고도의 반대신문 기법···························································605
가. 정직하지 않은 증인을 신문할 때 / 605
나. 위증을 하고 있는 증인을 신문할 때 / 605
다. 의표를 찌르는 방법 / 609
라. 발뺌을 방지하기 위해 미리 도망갈 곳을 막는 신문을 해두는 방법
(주변장애물을 없애는 방법) / 609
마. 주신문에서 증인이 답변할 것으로 예상되는 내용과 객관적으로 모순되는
서증은 미리 제출하지 않고 신문할 때 제시한다. / 610
바. 사람의 본능에 호소하는 방법 / 610
사. 증인을 우쭐하게 만든 후 중요한 증언을 이끌어낸다. / 611
아. 증인신문이 끝나 증인이 증언대에서 내려오려고 할 때 한다. / 611
5. 반대신문사항이 생각나지 않는 경우······································· 611
가. 인식단계에서 잘못의 가능성 / 611
나. 다른 사항과 비교하여 왜 그 사항에 관해서는 기억이 더 선명한가 / 612
다. 애매한 표현에 대한 추궁 / 612
라. 증인으로 출정한 사정을 밝힌다. / 614
6. 반대신문에서 논쟁을 불러일으키는 신문이 허용되는가··············614
가. 논쟁을 불러일으키는 신문이란 / 614
나. 원 칙 / 615
Ⅷ. 좋지 않은 반대신문·························································································615
1. 초점이 빗나간 신문······························································615
2. 주신문을 그대로 되풀이하는 신문·········································· 615
3. 주신문과 같은 순서로 다시 반대신문을 하는 것·······················616
4. 의견이나 법적 평가를 요구하는 신문······································616
5. 증인과 논쟁을 하는 신문······················································ 616
6. 지엽말단적인 것에만 집착해서 하는 신문································616
7. 신문자의 주장만을 말하거나 증인에게 강요하고 있을 뿐 증인의
진술을 들으려 하지 않는 신문···············································617
8. 너무 몰아붙여 오히려 제 무덤을 파는 신문·····························617
9. 의미 없는 반대신문······························································617
10. 증인이 모르는 것에 대한 신문·············································· 617
11. 증인의 착오를 옳거니 하고 책망하는 신문······························617
12. 전문용어, 특수한 표현을 포함하는 말을 사용하는 신문·············618
13. 반드시 신문할 사항을 빠뜨리는 신문····································· 618
Ⅸ. 반대신문의 숙달비결······················································································· 618
1. 경험을 쌓을 것····································································619
2. 많은 지식, 경험칙을 몸에 습득할 것······································ 619
3. 실패사례를 모아 둘 것························································· 619
4. 악한 사람이 되는 것을 싫어하지 말 것···································619
5. 다른 변호사들의 신문방법에서 배울 것···································620
Ⅹ. 탄 핵···········································································································621
1. 서 론················································································621
가. 탄핵의 기능과 유형 / 621 나. 전술상의 배려 / 622
2. 선행하는 모순진술에 따른 탄핵············································· 628
가. 탄핵의 과정 / 630 나. 윤리적 고려 / 643
3. 그 밖에 선행하는 모순에 따른 탄핵······································· 644
가. 생략과 묵비 / 644 나. 선행된 모순행동 / 650
4. 성격 및 특징에 따른 탄핵·····················································652
가. 범죄의 유죄판결 / 652 나. 거짓말을 비롯한 악질적인 과거 행위 / 654
다. 지각(知覺)이나 기억의 장애 / 655
5. 사건정보(case-data)에 따른 탄핵············································· 657
가. 개인적 이해관계 / 657 나. 동 기 / 659
다. 편견과 예단 / 660
제6절 그 밖의 문제······························································································662
Ⅰ. 진술서에 관한 문제································································· 662
1. 총 설················································································662
가. 진술서의 효용 / 662 나. 부차적 기능 / 662
다. 준비의 촉진 / 662 라. 준비서면과 진술서의 역할분담 / 663
마. 진술서 방식에 적합하지 않는 사건 / 663
2. 진술서가 제출되어 있는 경우의 신문······································663
가. 주 신 문 / 663 나. 반대신문 / 664
Ⅱ. 전문가에 대한 신문································································· 665
1. 전문가 증인이란·································································· 665
2. 전문적 의견의 영역과 증인적격············································· 666
3. 전문가 증인에 대한 신문기법················································ 668
가. 전문가 증인에 대한 주신문 기법 / 668
나. 전문가 증인에 대한 반대신문기법 / 678
4. 전문가 증인과는 논쟁하지 말고 존중할 것······························ 689
5. 전문가 증거의 윤리······························································690
가. 보 수 / 690 나. 증언에 영향력을 미치려는 행위 / 690
Ⅲ. 이 의(objections)·····································································691
1. 이의의 주된 목적·································································691
2. 숨은 목적··········································································· 692
가. 상대방 변호사에 대한 견제 / 692 나. 법관에 대한 주의환기 / 692
다. 증인에 대한 조력 / 692 라. 의뢰인에 대한 제스처 / 692
3. 이의를 신청하는 시기···························································693
4. 이의사유·············································································693
5. 이의에 대한 대처·································································694
가. 일 반 론 / 694 나. 구체적인 이의 사례와 대처방법 / 694
6. 실무의 현상········································································ 702
7. 이의가 나오기 어려운 이유··················································· 703
가. 소송을 딱딱하게 만들고 싶지 않다 / 703
나. 법관이 싫어하지 않을까 하는 우려 / 703
다. 조서에 반영되지 않는다 / 703
라. 이의신청의 의미에 대한 이해부족 / 703
마. 이의를 하더라도 의미가 없는 경우가 많다 / 704
8. 이의의 단점········································································ 704
Ⅳ. 개입신문과 보충신문································································704
1. 보충신문？개입신문이란························································· 704
2. 개입신문의 당부·································································· 704
가. 개입신문의 예 / 704 나. 개입신문의 장단점 / 705
다. 개입신문을 해야 할 경우 / 705 라. 개입신문의 실정 / 706
3. 법관의 개입신문에 대한 대응················································ 706
4. 보충신문·············································································707
가. 법관이 보충신문을 하는 경우 / 707
나. 보충신문의 방법 / 709
5. 법관의 보충신문？개입신문에 대한 異議···································710
6. 개입신문？보충신문으로부터 법관의 심중을 파악할 것··············· 711
Ⅴ. 최종변론(Final Argument)···························································712
1. 최종변론의 역할과 기능························································712
가. 주장의 정리 / 712 나. 설득논거와 설득주제의 전달 / 713
2. 설득주제(Theme)·································································· 718
3. 형식(Format)········································································730
가. 원고측의 주변론(Plaintiff's Argument-in-chief) / 731
나. 피고측의 주변론(Defendant's Argument-in-chief) / 731
다. 원고의 반론(Plaintiff's Rebuttal) / 733
4. 구성(Structure)····································································· 734
가. 항목중심의 구성(Topical Organization) / 735
나. 그 밖의 구성 / 736
다. 구성을 위한 그 밖의 도구 / 738
5. 내용(Content)·······································································744
가. 설득력 있는 스토리를 이야기할 것 / 744
나. 반대신문과 연계시킬 것 / 746
다. 문제점과 약점을 해소할 것 / 747
6. 말하는 투와 기법·································································748
가. 읽거나 암기하지 말 것 / 748 나. 신체의 움직임 / 748
다. 말의 페이스 / 749 라. 감정 표현 / 749
마. 영 상 / 750 바. 헤드라인 / 750
사. 간결하고 적극적인 말투 / 752
7. 문제 있는 변론····································································752
가. 개인적인 신념을 이야기하는 것 / 752
나. 예단이나 편견(bigotry)에 호소하는 것 / 753
다. 증거를 곡해(misstating)하는 것 / 754
라. 법을 왜곡하여 이야기하는 것 / 755
마. 증거를 부적절하게 이용하는 것 / 755
바. 감정, 동정, 열정에 호소하는 것 / 756
제7절 법원의 눈으로 본 신문기법·········································································· 756
Ⅰ. 신문기법의 필요성···································································756
Ⅱ. 성공적인 신문의 요소······························································ 757
1. 총 설················································································757
2. 신문 성공의 인적 조건························································· 757
3. 주신문의 구성····································································· 758
4. 역할의식과 호감도······························································· 760
가. 역할의식 / 760 나. 호감도(rapport) / 760
Ⅲ. 효과적인 신문을 위한 소송운영의 방식······································ 761
1. 쟁점정리의 중요성······························································· 761
2. 증명주제의 구조 및 신문과의 관련·········································761
3. 신문순서와 신문시간···························································· 762
4. 증인신문(당사자신문)에서 유의점············································· 762
가. 논쟁을 피한다 / 762 나. 법적 의미를 묻는 신문 / 763
다. 사실과 感想？印象을 분별한다 / 764
라. 그 자리에서 확인할 수 없는 사항에 관한 신문 / 764
마. 조서에 쉽고 정확하게 기재될 수 있도록 신문한다. / 765
5. 이의의 취급방법·································································· 765
가. 총 설 / 765 나. 이의의 취급방법 / 766
Ⅳ. 대질신문················································································ 767
Ⅴ. 본인소송에서 법관의 신문························································ 767
Ⅵ. 사무관이 바라는 신문······························································ 768
Ⅶ. 신문기법이 필요한 시기의 도래·················································769

머리말 1

제3판을 내면서

개정판을 낸 지도 3년이 넘게 지났다. 그동안 필자는 로스쿨 교수를 정년퇴직하고 경상북도 자치경찰위원장으로 자리를 옮겼다. 경찰이 무엇인지에 대하여 아무런 사전 지식도 없이 2021년부터 갑자기 시행된 자치경찰제의 핵심 기구인 자치경찰위원회에 들어오면서 평생을 연구해 오던 법률과는 다른 영역에서 많은 값진 경험을 하였다. 지난 3년 가까운 기간 동안은 지방분권과 그에 따른 자치경찰의 필요성, 국민의 사랑과 신뢰를 받기 위한 진정한 민주경찰의 모습과 냉엄한 현실정치의 한 가운대에서 왜곡된 자치경찰제의 시행에 따른 국민 혈세의 낭비와 같은 정치적？행정적 쟁점과 씨름하며 끊임없이 고민해 왔다. 그 과정에서 부족한 지식이지만 국민으로부터 사랑받는 경찰을 위한 희망만으로 ‘자치경찰법 해설(육법사, 2023년)’을 내었으나, 사실인정론에 대하여는 시간적으로나 정신적으로 이를 살펴볼 여유가 없었다. 그러나 경찰업무에 종사하면서도 단순한 법률해석학이 아니라 과학적이고 실질적인 영역이라 할 수 있는 ‘사실인정론’을 연구한 것이 필자에게는 많은 도움이 되었다. 경찰의 현실을 파악하는 것은 사실인정론을 응용하는 기회가 되었고, 국민과 경찰 그리고 행정관료와 정치인을 설득하는데 큰 도움이 되었다. 무엇보다 경찰을 개혁하는데 필요한 마음가짐은 경찰에 대한 사랑과 세상사에 대한 겸허함, 사고의 유연함, 그리고 건강함과 성실성이다. 이를 갖출 때 비로소 편견 없이 현실을 파악하여 이를 바탕으로 국민이 원하는 경찰제도를 수립할 수 있다. 이는 사실인정론의 기본자세와 통한다.
법률가들의 미래가 불확실할 정도로 세상이 급변하고 있다. 책상머리에 앉아서 머리로만
취득한 메마른 지식이 아니라, 생활현장과 과학적 지식 및 인문학적 지식이 결합된 풍부한경험이 기반을 이룬 경험칙을 몸에 갖춤으로써 제대로 된 사실인정을 할 수 있다. 그런 의미에서 과거 사법시험보다는 나름의 경험을 쌓은 사람들이 법률가가 될 수 있는 현재의 로스쿨 제도는 장점이 있다고 본다. 그러나 아직도 법률적 지식만을 우대하는 경향이 완전히 사라지지 않고 있다.

또한 AI의 출현으로 법률지식은 이제 사람의 두뇌 속에 가지고 있지 않아도 컴퓨터가 이
를 거의 완벽하게 저장할 뿐만 아니라. 이를 정확하게 분석하여 결론을 낼 수 있는 상황이 되었고, 그 수준은 시간이 갈수록 더욱 정확하고 치밀하게 될 것이다. 그러나 사실인정은 그 성격상 컴퓨터나 인공지능이 하기에는 많은 한계가 있을 수밖에 없다. 제대로 된 사실인정은 단순한 원피고 사이의 승소나 패소가 아닌 진정한 분쟁해결을 위한 기반이 될 수 있다. 사람을 직접 만나서 설득하고 상처 입은 마음을 치유해줄 수 있는 것은 사람이 아니면 절대 안 되는 일이다.
이제는 법률의 습득도 중요하지만 사실인정을 위한 노력이 필요한 시대가 되었다. 단순한 법률학이 과거의 형이상학과 같은 추상에 머무르는 것이라면, 사실인정이론은 법과학이나 심리학과 같은 자연과학은 물론 인문 사회의 모든 과학을 망라한 영역에 있는 실질적인 분쟁해결을 위한 합리적인 방안이요 법학의 새로운 길이다. 법률가들이 이를 통감하지 않고 과거에만 머물다가는, 분쟁해결은 국민의 기대에 못 미치는 수준에 머물 것이고, 사법부를 비롯한 법조는 결국 이 사회에서 퇴출될 위험도 있다. 위기의식을 가지고 새로운 흐름에 맞는 사법운용이 절실히 필요한 때이다.
제3판에서는 인증신문 방법론에 중점을 두고 보충하였다. 아직까지 당사자주의 소송구조에 완전히 적응하지 못한 우리의 공판절차에서 가장 아쉬운 것이 증인신문 요령이기 때문이다. 형사법정은 물론이거니와 민사법정에서도 법정을 활기차게 하여 법관이 사실인정에 흥미를 가지고 실체적 진실을 발견하는데는 증인신문이 중심이 되어야 하고, 이를 위해서는 증인신문기법을 몸에 익히는 것이 시급하다. 법을 어긴 자에게 관용하는 사회는 결코 건강한 사회가 아니다. 법원은 사회적 평화가 깨어진 분쟁에서, 어느 쪽이 책임을 져야 할 것인지에 관하여, 기초가 되는 사실인정을 정확하고 신속하게 판단할 책무가 있다. 이를 위하여는 법률가는 서증의 정확한 분석은 물론이고, 증인을 제대로 신문하는 기법과 이를 판단할 수 있는 지혜를 갖추어야 한다. ① 개정판에서는 그중에서 특히 ‘반대신문’에 많은 비중을 두었다. 그런데 우리 법원에서 실제로 시행되고 있는 증인신문의 현실에서 볼 때, ‘주신문’이 차지하는 무게가 매우 크다는 점을 감안하여, 제3판에서는 이 부분에 대하여 미국의 법정기법에서 논의되는 유용한 신문기법을 소개하였다. 이는 반대신문에서도 이용될 수 있음은 물론이다. ② 또한 반대신문 중에서도 증인의 신빙성을 탄핵하는 신문기법을 보다 깊이 구체적으로 살펴보았다. 이는 사실인정론의 핵심과도 통하는 중요한 분야이다. ③ 법관의 보다 정확한 사실인정을 위하여 반드시 필요한 것이 전문가의 활용이다. 사회가 복잡하고 기술적이며 전문화된 시대를 맞아 운용이 더욱 확대되고 있는 전문가 증인의 효과적인 신문방법을 자세히 설명하였다. ④ 그리고 당사자주의와 교호신문제도를 정착하기 위한 기초적인 장치인, 공판절차에서 이의(objection)를 활성화하기 위하여 구체적인 이의사례와 대처방법을 추가하였다. ⑤ 최종변론은 배심제를 채택하는 영미법 국가에서는 배심평결을 앞두고 배심을 설득할 수 있는 변호사의 마지막 기회로서 매우 중요한 의미를 가진다. 우리나라에서는 직업법관제를 채택하고 있고, 심리가 주로 준비서면과 서증을 비롯한 서면을 중심으로는 진행되었으므로, 과거에는 민사소송에서 최종변론을 하는 경우가 드물었다. 그러나 이제는 공판중심주의가 활성화되면서 영미와 같은 수준은 아니지만, 최종변론을 하는것이 일반적인 현상이다. 당사자주의와 공판중심주의 아래서는 당사자가 중심이 되어 법정에서 사안의 실체적 진실을 밝혀나가야 한다. 그렇게 함으로써 법정을 생기있게 하고, 국민에게 알기 쉬운 법정이 됨으로써, 사법 불신을 제거할 수 있는 좋은 계기가 될 수 있다.

따라서 사실인정과 법률적용에 관한 마지막 결론을 당사자가 주도할 수 있는 최종변론은
이를 활성화할 필요가 있다. 그래서 최종변론에 관한 항목을 추가하였다.
제3판에서는 미국에서 출판된 Steven Lubet의 Modern Trial Advocacy에서 많은 영감
을 얻었다. 당사자주의 소송구조 아래서 오랫동안 배심을 설득하면서 길러온 미국의 법정기법은 우리에게 많은 참고가 된다.
마지막으로 이번에도 출판사정이 어려운 상황에서도 꼼꼼한 교정과 편집을 해주신 진원북스 편집 관계자분과 이 책이 나올 때까지 많은 성원을 아끼지 않은 진원북스의 양희원 사장님께 다시 한번 감사드린다.

2024년 3월
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