기판력확장과 변론종결후 특정승계인에 관한 연구 (Research on Enhancing of Res Adjudicata and Limited Successor after Debate is Concluded)

서지정보

· 발행기관 : 단국대학교 법학연구소
· 수록지 정보 : 법학논총 / 34권 / 2호 / 567 ~ 594페이지
· 저자명 : 최성호

초록

In the res adjudicata, causing for the cow only when it is possible to do only among persons concerned of the lawsuit, and the lawsuit continues back again among the persons concerned is a principle (code of civil procedure Article 204clause 1). This is called the relativity of the res adjudicata though the res adjudicata doesn’t reach the third person concerned who doesn’t take part by the pre-lawsuit. However, the res adjudicata might cause it for the person ..no former parties in a lawsuit it... The irrevocable judgment is effective of that for the person who has the objective of the claim for the successor or him after the debate is concluded (clause 1), and that is, the irrevocable judgment to the person who became the plaintiff and a defendant for others has and has effective for other person (clause 3).
However, I will insist on enhancing the res adjudicata to the problem that it should be negative to secure successor’s procedure right when the existence of the decision is not understood as follows.
The first, the relation of right in the substance method that became basic for the standard concerning the limited successor range before the subject of the locus standi or the dispute position after concluding the debate, the procedure security theory that starts admitting enhancing the res adjudicata the request of legal stability and in consideration of the impartiality between the person concerned and the third party might be right.
The 2nd, the judicial precedent divides the objective of the lawsuit into the standpoint of the judicial precedent for right or wrong of the successor according to the character of the right and to succeed to by a real right and a claim right in the former case though it becomes a successor after the debate is concluded as the res adjudicata causes it for the successor, in the latter case,the lawsuit thing of burning down changes and the successor range doesn’t change in the standpoint of no so if the successor range is decided by the form theory by a real right or claim right or wrong of the right either. The interpretation that it is not a successor from beginning is appropriate though there can be a difference within the range of the res adjudicata on the successor.
The 3rd, I will distinguish the problem of the make-up of the res adjudicata and the problem of the action of the res adjudicata when there is a peculiar right to refuse payment to the successor in association with the successor range after the debate is concluded thirdly. Therefore, it is said also to the successor who comes to have a refutation reason as peculiar as the form theory in a faithful interpretation to the law regulations that the res adjudicata causes it for the successor that even the position of formal successor is incontrovertible and causes it by the res adjudicata by the form theory. However, the psychology of the res adjudicata that acts and means the submitting prohibition of the method of defending attacking (interception) is not done when the institution of the lawsuit by such a peculiar refutation reason is the same the lawsuit thing or becomes a prior settlement relation or there is a contradiction relation. The needless theory will be appropriately made need not another discussion about the substance theory and the form theory because of the decision of the presence of psychology after all by the action of the res adjudicata.
The 4th, Whether is not it execution sentence addition at the stage of the execution sentence giving and who has the successor inside with the person who receives the decision the load of the filing of suit concerning the rejection or not, the existing law’s demanding the procedure that admits the existence of the claim to the successor by the viewpoint of impartiality between promptness or the execution person concerned person and the successor of execution expects of the succession fact none and execution is admitted. Therefore, the bringing a case responsibility conversion theory that the successor fights over the existence of the obligation to the execution person concerned by the lawsuit is appropriate.

영어초록

In the res adjudicata, causing for the cow only when it is possible to do only among persons concerned of the lawsuit, and the lawsuit continues back again among the persons concerned is a principle (code of civil procedure Article 204clause 1). This is called the relativity of the res adjudicata though the res adjudicata doesn’t reach the third person concerned who doesn’t take part by the pre-lawsuit. However, the res adjudicata might cause it for the person ..no former parties in a lawsuit it... The irrevocable judgment is effective of that for the person who has the objective of the claim for the successor or him after the debate is concluded (clause 1), and that is, the irrevocable judgment to the person who became the plaintiff and a defendant for others has and has effective for other person (clause 3).
However, I will insist on enhancing the res adjudicata to the problem that it should be negative to secure successor’s procedure right when the existence of the decision is not understood as follows.
The first, the relation of right in the substance method that became basic for the standard concerning the limited successor range before the subject of the locus standi or the dispute position after concluding the debate, the procedure security theory that starts admitting enhancing the res adjudicata the request of legal stability and in consideration of the impartiality between the person concerned and the third party might be right.
The 2nd, the judicial precedent divides the objective of the lawsuit into the standpoint of the judicial precedent for right or wrong of the successor according to the character of the right and to succeed to by a real right and a claim right in the former case though it becomes a successor after the debate is concluded as the res adjudicata causes it for the successor, in the latter case,the lawsuit thing of burning down changes and the successor range doesn’t change in the standpoint of no so if the successor range is decided by the form theory by a real right or claim right or wrong of the right either. The interpretation that it is not a successor from beginning is appropriate though there can be a difference within the range of the res adjudicata on the successor.
The 3rd, I will distinguish the problem of the make-up of the res adjudicata and the problem of the action of the res adjudicata when there is a peculiar right to refuse payment to the successor in association with the successor range after the debate is concluded thirdly. Therefore, it is said also to the successor who comes to have a refutation reason as peculiar as the form theory in a faithful interpretation to the law regulations that the res adjudicata causes it for the successor that even the position of formal successor is incontrovertible and causes it by the res adjudicata by the form theory. However, the psychology of the res adjudicata that acts and means the submitting prohibition of the method of defending attacking (interception) is not done when the institution of the lawsuit by such a peculiar refutation reason is the same the lawsuit thing or becomes a prior settlement relation or there is a contradiction relation. The needless theory will be appropriately made need not another discussion about the substance theory and the form theory because of the decision of the presence of psychology after all by the action of the res adjudicata.
The 4th, Whether is not it execution sentence addition at the stage of the execution sentence giving and who has the successor inside with the person who receives the decision the load of the filing of suit concerning the rejection or not, the existing law’s demanding the procedure that admits the existence of the claim to the successor by the viewpoint of impartiality between promptness or the execution person concerned person and the successor of execution expects of the succession fact none and execution is admitted. Therefore, the bringing a case responsibility conversion theory that the successor fights over the existence of the obligation to the execution person concerned by the lawsuit is appropriate.

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