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- A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word demur means "to object"; a demurrer is the document that makes the objection. Lawyers informally define a demurrer as a defendant saying "So what?" to the pleading. Typically, the defendant in a case will demur to the complaint, but it is also possible for the plaintiff to demur to an answer. The demurrer challenges the legal sufficiency of a cause of action in a complaint or of an affirmative defense in an answer. If a cause of action in a complaint does not state a cognizable claim or if it does not state all the required elements, then the challenged cause of action or possibly the entire complaint can be thrown out (informally speaking) at the demurrer stage as not legally sufficient. A demurrer is typically filed near the beginning of a case in response to the plaintiff filing a complaint or the defendant answering the complaint. In common law, a demurrer was the pleading through which a defendant challenged the legal sufficiency of a complaint in criminal or civil cases. Today, however, the pleading has been discontinued in many jurisdictions, including the United Kingdom, the U.S. federal court system, and most U.S. states (though some states, including California, Pennsylvania, and Virginia, retain it). In criminal cases, a demurrer was considered a common law due process right, to be heard and decided before the defendant was required to plead "not guilty," or make any other pleading in response, without having to admit or deny any of the facts alleged. A demurrer generally assumes the truth of all material facts alleged in the complaint, and the defendant cannot present evidence to the contrary, even if those facts appear to be obvious fabrications by the plaintiff or are likely to be easily disproved during litigation. That is, the point of the demurrer is to test whether a cause of action or affirmative defense as pleaded is legally insufficient, even if all facts pleaded are assumed to be true. The sole exception to the no-evidence rule is that a court may take judicial notice of certain things. For example, the court can take judicial notice of commonly known facts not reasonably subject to challenge, such as the Gregorian calendar, or of public records, such as a published legislative report showing the intent of the legislature in enacting a particular statute. (en)
- 방소항변(妨訴抗辯)은 민사소송의 절차로 피고가 원고가 제기한 소의 문제를 들어 변론을 거부하는 것을 말한다. 영미법 체계에서 방소항변은 법적인 충분성(legal sufficiency)에 이의를 제기하는 것인데 원고가 제시한 사실들을 부인하거나 수긍하지는 않는다. 사건의 초기에 방소항변을 작성하는 것이 보통이며 간단히 표현하자면 원고가 "당신은 이러이러한 잘못을 저질렀어"라고 주장하는 것에 대한 "그래서?"라는 대답을 하는 것으로 이해할 수 있다. 형사소송에도 방소항변은 존재하나 현재 별로 쓰이지 않는다. 영어단어인 demurrer는 방소항변인 혹은 이의제기자라는 뜻으로도 쓰인다. (ko)
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