訴訟承繼論 再論 － 民事訴訟法 제81조, 제82조에 관한 새로운 觀點 － (An argue against the Theory of Succession in Action)

서지정보

· 발행기관 : 한국민사소송법학회
· 수록지 정보 : 민사소송 / 22권 / 1호 / 213 ~ 253페이지
· 저자명 : 강구욱

초록

The article 81 of the Korean Civil Procedure Act(KCPA) stipulates the ‘successor’s litigation intervention’, and the article 82 of the KCPA stipulates the ‘successor’s takeover of lawsuit’. The traditional theory is developing the opinion following that of Japanese scholar Kaneko Hajime(兼子一) who understanded them as a kind of the succession in action.
However, in this study, I made a full discussion of those articles as follows. ① The concept of succession in action can be defined as that the new party inherits the legal status of the former party, and it is not appropriate to understand that as the transfer of ‘standing to sue’. ② Unlike the ‘succesor’s takeover of lawsuit’ of the German Code of Civil Procedure, the ‘successor’s litigation intervention’ by the article 81 & 79 of the KCPA and the ‘successor’s takeover of lawsuit’ by the article 82 of the KCPA do not correspond to above-stated succession in action. ③ The structure of lawsuit after the successor’s litigation intervention by the article 81 & 79 of the KCPA is lawsuit intervened by independent party, so the article 67 shall be applied mutatis mutandis to the procedure by the article 79(2), and the plaintiff or the defendant of former lawsuit can withdraw from the lawsuit by the article 80. Meanwhile the structure of lawsuit after the court ruling on the successor’s takeover of lawsuit is ordinary co-litigants, so the article 66 of the KCPA shall be applied to the lawsuit, and the plaintiff or the defendant of the former lawsuit can withdraw from the lawsuit by the article 82(3) & 80. ④ The article 81 of the KCPA is not a ground regulation about the successor’s litigation intervention, but an exceptional regulation to the article 265 which stipulates the interruption of prescription and the observance of legal period. ⑤ When there is a request for the ‘successor’s litigation intervention’ or the ‘successor’s takeover of lawsuit’, the court does not need fact-finding procedure such as examination of evidence to approve the reason for request, so that the request should be allowed in the Supreme Court, and in case that the request is unjustifiable, such request must be dismissed promptly by the court ruling not by the judgment. ⑥ As the ‘duty-successor’s litigation intervention’ and the ‘right-successor’s takeover of lawsuit’ can be unconstitutional, against the essence of the Civil Procedure, and there is no needs to admit them, it is desirable to abolish them.
In addition, I acknowledged that the traditional Korean theory on the succession in action does not correspond to the article 81 & 79 and the article 82 of the KCPA, but follows the regulations of the German Code of Civil Procedure and the interpretation on them.

영어초록

The article 81 of the Korean Civil Procedure Act(KCPA) stipulates the ‘successor’s litigation intervention’, and the article 82 of the KCPA stipulates the ‘successor’s takeover of lawsuit’. The traditional theory is developing the opinion following that of Japanese scholar Kaneko Hajime(兼子一) who understanded them as a kind of the succession in action.
However, in this study, I made a full discussion of those articles as follows. ① The concept of succession in action can be defined as that the new party inherits the legal status of the former party, and it is not appropriate to understand that as the transfer of ‘standing to sue’. ② Unlike the ‘succesor’s takeover of lawsuit’ of the German Code of Civil Procedure, the ‘successor’s litigation intervention’ by the article 81 & 79 of the KCPA and the ‘successor’s takeover of lawsuit’ by the article 82 of the KCPA do not correspond to above-stated succession in action. ③ The structure of lawsuit after the successor’s litigation intervention by the article 81 & 79 of the KCPA is lawsuit intervened by independent party, so the article 67 shall be applied mutatis mutandis to the procedure by the article 79(2), and the plaintiff or the defendant of former lawsuit can withdraw from the lawsuit by the article 80. Meanwhile the structure of lawsuit after the court ruling on the successor’s takeover of lawsuit is ordinary co-litigants, so the article 66 of the KCPA shall be applied to the lawsuit, and the plaintiff or the defendant of the former lawsuit can withdraw from the lawsuit by the article 82(3) & 80. ④ The article 81 of the KCPA is not a ground regulation about the successor’s litigation intervention, but an exceptional regulation to the article 265 which stipulates the interruption of prescription and the observance of legal period. ⑤ When there is a request for the ‘successor’s litigation intervention’ or the ‘successor’s takeover of lawsuit’, the court does not need fact-finding procedure such as examination of evidence to approve the reason for request, so that the request should be allowed in the Supreme Court, and in case that the request is unjustifiable, such request must be dismissed promptly by the court ruling not by the judgment. ⑥ As the ‘duty-successor’s litigation intervention’ and the ‘right-successor’s takeover of lawsuit’ can be unconstitutional, against the essence of the Civil Procedure, and there is no needs to admit them, it is desirable to abolish them.
In addition, I acknowledged that the traditional Korean theory on the succession in action does not correspond to the article 81 & 79 and the article 82 of the KCPA, but follows the regulations of the German Code of Civil Procedure and the interpretation on them.

참고자료

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