민사소송에 있어서 특정승계인의 범위 (Research on Scope of Limited Successor in Civil Procedure)

서지정보

· 발행기관 : 한양대학교 법학연구소
· 수록지 정보 : 법학논총 / 30권 / 1호 / 187 ~ 220페이지
· 저자명 : 김일룡

초록

In civil suit, the scope of limited successor becomes an issue in two areas. One is thescope of a successor after the completion of oral proceedings with effect of excludingfurther litigation. The other is the scope of a successor in the succession of a lawsuit.
Previous discussion on the scope of a successor after the completion of oral proceedingswith effect of excluding further litigation introduced the theories on the scope first. Thenexplaining the scope again by comparing the theory of legal form and the theory ofsubstance was general practice. The scope of a successor in the succession of a lawsuitwas also discussed in similar way by understanding it together with the scope of asuccessor after the completion of oral proceedings.
However, there remains a question whether it is reasonable to independently discuss thecomparison of theories and the comparison of new and old theories of lawsuit subjectmatter. In order to understand the whole picture of successor scope, it is believed that theopposition of theories should be absorbed by new and old theories of lawsuit subjectmatter, or, the new and old theories of lawsuit subject matter should be absorbed into theopposition of theories and discussed in a single system. Meanwhile, the reliance theorydoes not have relation with new and old theories of lawsuit subject matter, which constitutesthe substance of excluding further litigation effect, because it is based on real right theory,which finds the essence of excluding further litigation effect in substantial law. Thestanding to succeed theory cannot be explained by relating it either to new theory or oldtheory of lawsuit subject matter because it is supported by both new and old theories oflawsuit subject matter. The due process guarantee theory is being developed without anydirect relation with the opposition of new and old theories of lawsuit subject matter. Also,it is difficult to say that the new and old theories of lawsuit subject matter are directlyreflected in the theories from historical viewpoint. Consequently, it is believed that the new and old theories of lawsuit subject matter cannot properly contain these issues.
Therefore, it is believed that the direct intervention of new and old theories of lawsuitsubject matter to the scope definition of a successor should be blocked. The theories shouldbe classified into reliance theory, standing to succeed theory based on old lawsuit subjectmatter theory, standing to succeed theory based on new lawsuit subject matter theory,agent in dispute succeeding the status theory and due process guarantee theory. It wouldbe more useful to understand the whole picture when the opposition in successor scopedependent on the nature of claim right and the opposition between theory of legal form andtheory of substance would be analyzed by relating them to above theories.
Among the theories, the due process guarantee theory seems the most reasonable theorybecause it puts priority on the guarantee of process between a successor and the oppositeparty of the previous owner as it identifies the essence of excluding further litigation effectfrom the viewpoint of legal procedure law.

영어초록

In civil suit, the scope of limited successor becomes an issue in two areas. One is thescope of a successor after the completion of oral proceedings with effect of excludingfurther litigation. The other is the scope of a successor in the succession of a lawsuit.
Previous discussion on the scope of a successor after the completion of oral proceedingswith effect of excluding further litigation introduced the theories on the scope first. Thenexplaining the scope again by comparing the theory of legal form and the theory ofsubstance was general practice. The scope of a successor in the succession of a lawsuitwas also discussed in similar way by understanding it together with the scope of asuccessor after the completion of oral proceedings.
However, there remains a question whether it is reasonable to independently discuss thecomparison of theories and the comparison of new and old theories of lawsuit subjectmatter. In order to understand the whole picture of successor scope, it is believed that theopposition of theories should be absorbed by new and old theories of lawsuit subjectmatter, or, the new and old theories of lawsuit subject matter should be absorbed into theopposition of theories and discussed in a single system. Meanwhile, the reliance theorydoes not have relation with new and old theories of lawsuit subject matter, which constitutesthe substance of excluding further litigation effect, because it is based on real right theory,which finds the essence of excluding further litigation effect in substantial law. Thestanding to succeed theory cannot be explained by relating it either to new theory or oldtheory of lawsuit subject matter because it is supported by both new and old theories oflawsuit subject matter. The due process guarantee theory is being developed without anydirect relation with the opposition of new and old theories of lawsuit subject matter. Also,it is difficult to say that the new and old theories of lawsuit subject matter are directlyreflected in the theories from historical viewpoint. Consequently, it is believed that the new and old theories of lawsuit subject matter cannot properly contain these issues.
Therefore, it is believed that the direct intervention of new and old theories of lawsuitsubject matter to the scope definition of a successor should be blocked. The theories shouldbe classified into reliance theory, standing to succeed theory based on old lawsuit subjectmatter theory, standing to succeed theory based on new lawsuit subject matter theory,agent in dispute succeeding the status theory and due process guarantee theory. It wouldbe more useful to understand the whole picture when the opposition in successor scopedependent on the nature of claim right and the opposition between theory of legal form andtheory of substance would be analyzed by relating them to above theories.
Among the theories, the due process guarantee theory seems the most reasonable theorybecause it puts priority on the guarantee of process between a successor and the oppositeparty of the previous owner as it identifies the essence of excluding further litigation effectfrom the viewpoint of legal procedure law.

참고자료

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