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소개글
다수 공동소송의 개선방안목차
제1장 서론················································································3제1절 연구의 목적·····································································3
제2절 연구의 범위와 방법····························································3
제2장 공동소송의 발생원인과 요건··················································5
제1절 의 의·············································································5
제2절 발생원인과 소멸원인···························································6
Ⅰ. 원시적발생원인··································································6
Ⅱ. 후발적발생원인··································································6
1. 제3자가 스스로 당사자로 가입한 경우·····································6
2. 종래의 당사자가 제3자로 소송에 끌어들이는 경우·······················7
3. 법원주도형······································································7
4. 복수인에 의한 승계····························································8 5. 소멸원인·········································································8
제3절 공동소송의 일반요건··························································8
Ⅰ. 주관적 요건···································································8
1. 권리의무의 공통······························································8
2. 권리, 의무발생원인의 공통·················································10
3. 권리, 의무와 발생원인의 동종·············································10
Ⅱ. 객관적 요건···································································10
제3장 통상의 공동소송의 문제점 개관·············································11
제1절 총설·············································································11 제2절 심판-공동소송공동의원칙····················································11
Ⅰ. 개념··············································································11
Ⅱ. 내용··············································································11
제3절 공동소송독립의 원칙의 수정················································13 Ⅰ. 수정의 필요성··································································13
Ⅱ. 증거공통의 원칙·······························································13
Ⅲ. 주장공통의 원칙·······························································14
제4절 문제의 제기····································································15
제4장 필수적공동소송·································································17
제1절 의 의············································································17
제2절 고유필수적 공동소송··························································17
Ⅰ. 형성권의 공동귀속···························································18
Ⅱ. 관리처분권의 공동귀속······················································19
Ⅲ. 공유관계·······································································21
제3절 유사필수적 공동소송··························································23 제4절 필수적 공동소송으로 볼 수 없는 예········································24
제5절 필요적 공동소송의 장점······················································25
Ⅰ. 당사자간의 연합관계·························································25
Ⅱ. 소송요건의 조사와 누락된 필수적 공동소송인의 보정··················26
Ⅲ. 소송자료의 통일······························································27
Ⅳ. 소송진행의 통일······························································28
Ⅴ. 본안재판의 통일······························································29
제5장 결 론···········································································30
제1절 필수적 공동소송에 관한 범위와 판례의 태도·····························31
제2절 민사소송법 제65조 후문에 관한 제도적 제안·····························31
참 고 문 헌
본문내용
제1장 서론제1절 연구의 목적
다수당사자소송이라 함은 1개의 소송절차에 3인 이상의 자가 동시에 또는 때를 달리하여 절차에 관여하는 소송을 말한다. 이러한 다수당사자소송은 오늘날 사회생활과 경제거래가 복잡해지면서 늘어나고 있으며, 종래의 1대 1의 개인주의적 소송형태로서는 처리할 수 없는 양상을 띠고 있다. 이러한 현대사회에서 발생하는 사인간의 분쟁은 많은 사람에게 직접․간접으로 영향을 미치고 있고, 어느 분쟁에 관하여 원고 ․ 피고 양당사자만이 이해관계를 가지는 것은 오히려 드문 형태라고 볼 수 있다. 한 예로 甲 ․ 乙 사이에 어느 토지의 소유권에 관하여 분쟁이 있을 때에는 乙로부터 위 토지를 임차하고 있는 丙은 위 분쟁의 결과에 대하여 이해관계를 가진다. 이러한 현상은 공해소송 같은 현대형 분쟁에 있어서는 더욱 뚜렷하다. 한 예로 공해로 피해를 입은 농민이 많이 있는 경우에 특정한 피해농민과 가해기업과의 사이의 소송의 결과는 모든 피해농민에게 영향을 미친다.
이처럼 사회에 존재하는 다수당사자분쟁을 하나의 소송절차에 몰아 해결하도록 하는 것이 다수당사자소송이며 이러한 다수당사자소송은 공통의 쟁점에 대하여 통일적인 심판을 하게 되어, 당사자에게 편리함은 물론 판결의 모순 ․ 저촉을 방지할 수 있어서 소송경제에도 도움을 준다.
제2절 연구의 범위와 방법
우리 민사소송법은 분쟁에 이해관계를 가지는 다수인간에 분쟁을 합리적으로 해결하기 위하여 몇 가지 제도를 규정하고 있다. 즉, 다수인 사이에 이해관계가 매우 강하여 이들을 서로 분리하여 개별적으로 처리하는 것이 곤란한 경우에는 고유필수적 공동소송의 형태를 마련하여 다수당사자소송을 강제하고 있고, 그 이해관계가 그렇게 강하지 아니한 경우에는 통상공동소송과 소송참가의 형태를 두어 당사자의 자발적 의사에 기하여 다수당사자소송을 성립시키도록 하고 있다.
우리 민사소송법이 규정하고 있는 다수당사자소송의 여러 제도는 그 시기를 기준으로 다수당사자가 때를 같이 하는 경우와 때를 달리하는 경우로 나누어 볼 수 있다. 수인이 때를 같이 하여 당사자의 지위에 서는 경우(동시적다수당사자소송)는 그 성립시기에 따라 소의 제기 시부터 그러한 경우(원시적동시적다수)와 소의 제기 후 소송 계속 중에 그렇게 된 경우(후발적동시적다수)가 있다. 원시동시적다수는 원고가 수인의 피고를 상대로 하여 소를 제기하는 경우와 같은 것으로서, 이것이 공동소송이다. 후발적동시적다수는 원고 甲이 피고 乙을 상대로 하여 소를 제기하여 소송이 계속 중에 제3자 丙이 참가하는 경우와 같은 것으로서 이것을 참가라고 한다.
