미국 민사소송에서의 약식재판(Summary Judgement)

• 발행기관: 한국민사소송법학회
• 저자명: 오대성
• 간행물 정보: 『민사소송』제14권 제2호, 748~788쪽, 전체 41쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.11.30

영문 초록

Summary judgment is a procedure by which a party can obtain a final determination on the merits without the necessity of a full trial. Federal Rule of Civil Procedure 56(c) governs the procedural requirements for summary judgment motions in federal court. It states summary judgment is proper when 『the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.』 Under Rule 56, a party may move for summary judgment at any time until thirty days after the close of discovery. The summary judgment process begins with the filing of a motion for summary judgment. Unless a party to the suit files a motion for summary judgment, no court has the power to render a judgment. The motion for summary judgment must expressly present the grounds for summary judgment. Although the main purpose of summary judgment is to avoid unnecessary trials, it also can function to simplify trial. Even if the summary judgment obviates the need for a trial, it does not impinge upon any jury trial rights. This is because the standard for obtaining summary judgment requires in part a finding that there is no fact issue to send to the jury. The court on summary judgment decide that one party necessarily would suceed if the case went to a jury. Fed. R. Civ. P. 56 was amended lagely in 2009. Therefore it is necessary to introduce American summary judgement. Thus this article is studied about its procedure, requirements, burden of proof, order, appeal, etc., in America civil procedure. This article may be helpful to improve our system of civil procedure.

목차

Ⅰ. 서론

Ⅱ. 약식재판의 신청과 답변

Ⅲ. 약식재판의 요건

Ⅳ. 약식재판의 심리와 선고

Ⅴ. 약식재판과 증명책임

Ⅵ. 약식재판의 증거자료(Summary judgment evidence)

Ⅶ. 약식재판에 대한 상소

Ⅷ. 우리 민사소송의 간이재판

Ⅸ. 결론

참고문헌

키워드

약식재판 소각하신청 소답서면 선서진술서 증언조서 연방민사소송규칙제56조 summary judgment motion to dimiss pleadings affidavit deposition Federal Rules of Civil Procedure 56