earticle

영어

It is true that in the analysis of our position of judicial precedent, there were many cases where we depended upon the theory of Germany. As seen above, however, several points of theoretical contradictions were exposed in analyzing the position of judicial precedent through the theory of Germany. In other words, the legal principle of theory of estimation in actuality or theory of estimation in advance and the change in the burden of proof are showing their limitations in properly analyzing our judicial precedent. It is the opinion of the Author that it is most appropriate to look at the position of our judicial precedent as having been based on the theory of probability that has been evolved in Japan. Since the theory of probability is a theory that was created to alleviate the burden of proof of public nuisance suit, however, it can be said that it is not directly related to the issue of burden of proof on fault. However, it would be acceptable to consider the position of judicial precedent of our country as having been based on the theory of probability since the theory of probability is being applied also in Japan with regards to the medical malpractice suit and causal relationship burden of proof. Furthermore, there is a need for the paradigm shift of looking at the facts that are considered as indirect contrary evidences for the defendant as plea items by looking at indirect facts recognized by judicial precedent as major factor in order to improve the degree of proof on major facts while not adding improper blow to the interest party by fulfilling Verhandlungsmaxime also in the legal assessment concept such as fault.