獨立當事者參加訴訟의 構造와 審判에 관한 試論 — 三面訴訟說에 대한 批判과 代案의 摸索 — (A Study on the Structure and the Trial and Judgment of the Independent Party Intervention Litigation)

서지정보

· 발행기관 : 한국민사소송법학회
· 수록지 정보 : 민사소송 / 25권 / 3호 / 149 ~ 194페이지
· 저자명 : 강구욱

초록

In order to identify fundamental misunderstandings or errors in the three-sided litigation theory on the structure of the independent party intervention litigation and to seek my alternative perspective (interpretation), I overviewed precedents and theories regarding that structure and the issue of the rules of judgment (application mutatis mutandis of the Article 67 of the Civil Procedure Act), and examined the legislative history of the independent party intervention system and the existing theories on the structure of that litigation, and examined the various legal principles accumulated by the three-sided litigation theory, on the issue of the application mutatis mutandis of the Article 67 to that litigation. And then, reviewed and criticized the analytical problems caused by the three-sided litigation theory and presented an interpretation opinion based on the main intervention litigation merger theory.
According to this research, the three-sided litigation theory grasps the structure of the independent party intervention litigation as a single litigation among plaintiff, defendant and intervenor, and establishes a circular relationship in which the defendant and the intervenor are assumed as the indispensable co-litigants in the relation to the plaintiff, the plaintiff and the intervenor are assumed as the indispensable co-litigants in the relation to the defendant, and the plaintiff and the defendant are assumed as the indispensable co-litigants in the relation to the intervenor. In that point, the issue of the application of the Article 67 (1) of the Civil Procedure Act regarding the litigation acts of the indispensable co-litigants and paragraph (2) regarding the litigation act of the counter party is not properly explained, and various and irrational opinions are created.
However, if we adopt the main intervention litigation merger theory, the plaintiff and the defendant, who are co-defendants in the litigation brought by the independent party intervenor, have the benefit of the united decision for the claims made by the intervenor as the reason for intervention. Therefore, by agenda them as indispensable co-litigation, The Article 67 (1) may be applied to their litigation acts, and Paragraph (2) may be applied to the intervenor’s litigation act, and the Article 67 does not apply mutatis mutandis to the litigation acts between the plaintiff and the defendant, which is the subject of independent party intervention.
However, by pointing out that such an interpretation theory may also be contrary to the provisions of the Civil Procedure Act on the independent party intervention, I concluded this study as an experimentative argument, promising further research.

영어초록

In order to identify fundamental misunderstandings or errors in the three-sided litigation theory on the structure of the independent party intervention litigation and to seek my alternative perspective (interpretation), I overviewed precedents and theories regarding that structure and the issue of the rules of judgment (application mutatis mutandis of the Article 67 of the Civil Procedure Act), and examined the legislative history of the independent party intervention system and the existing theories on the structure of that litigation, and examined the various legal principles accumulated by the three-sided litigation theory, on the issue of the application mutatis mutandis of the Article 67 to that litigation. And then, reviewed and criticized the analytical problems caused by the three-sided litigation theory and presented an interpretation opinion based on the main intervention litigation merger theory.
According to this research, the three-sided litigation theory grasps the structure of the independent party intervention litigation as a single litigation among plaintiff, defendant and intervenor, and establishes a circular relationship in which the defendant and the intervenor are assumed as the indispensable co-litigants in the relation to the plaintiff, the plaintiff and the intervenor are assumed as the indispensable co-litigants in the relation to the defendant, and the plaintiff and the defendant are assumed as the indispensable co-litigants in the relation to the intervenor. In that point, the issue of the application of the Article 67 (1) of the Civil Procedure Act regarding the litigation acts of the indispensable co-litigants and paragraph (2) regarding the litigation act of the counter party is not properly explained, and various and irrational opinions are created.
However, if we adopt the main intervention litigation merger theory, the plaintiff and the defendant, who are co-defendants in the litigation brought by the independent party intervenor, have the benefit of the united decision for the claims made by the intervenor as the reason for intervention. Therefore, by agenda them as indispensable co-litigation, The Article 67 (1) may be applied to their litigation acts, and Paragraph (2) may be applied to the intervenor’s litigation act, and the Article 67 does not apply mutatis mutandis to the litigation acts between the plaintiff and the defendant, which is the subject of independent party intervention.
However, by pointing out that such an interpretation theory may also be contrary to the provisions of the Civil Procedure Act on the independent party intervention, I concluded this study as an experimentative argument, promising further research.

참고자료

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