변론종결 후의 승계인에 대한 기판력ㆍ집행력의 확장

이정환(Lee, Jeong-Hawn) 원광대학교 법학연구소 2009 圓光法學 Vol.25 No.2

"Res iudicata"(Latin for "matter already judged") happens in principle only at person concerned and does not influence on a third party. Also, because joint litigant in the essential joint action or plaintiff․ defendant․ participation litigant in the independence person concerned participation lawsuit are the parties to a lawsuit, res iudicata reaches even in these people. Namely, that is the principle that res iudicata reaches only a person who has an opportunity submitting attack and defense method as a person concerned in litigation. Because enforcing litigation sequence on third party who don't have an opportunity that can claim and defend oneself's right is not improper in third party's viewpoint of formality guarantee as the purpose of litigation is clarification of right relation beween dispute person concerned. Consequently res iudicata does not reach to counsel, assistance participa tion or ordinary joinder mutually as well as third party of intervention. Accordingly, res iudicata that is full to legal principle of own responsibility which follows disposition principle by the person concerned has hard times relativity while res iudicata is reconciled with target of litigation that solve dispute beween person concerned in efficacy though that has public law character. But res iudicata reaches power in the third party who is the close relation with the person concerned in order to secure effectiveness of troubleshooting between the person concerned. Successors who is concluded argument, presumed successors, requisition right reversion subject from third person lawsuit charge, lawsuit secession person etc. are them. In particular, it can secure the troubleshooting effect in compliance with a judgement by doing so that successor receives pace of res iudicata in relation with counterpart after couclusion of argument. By the way, there is confrontation of opinion about that board power includes in extended successor's extent in this case though there is occasion that position of individual substantial law, that is, unique protest rights (Unique margin) that this successor can oppose against about other person's claim of right own bring. Also, when there is peculiar defense method along with extension of res iudicata, there is a problem whether executive power reaches. Hereupon, in this paper we search the confrontation and the meaning of realism · formalism referred res iudicata expansion and execution power extension when successor has the unique rights of defense regarding successors' extent after argument conclusion. Also, we wish to examine about the policy of presumed successor etc. that make as theoretical basis in formalism.

현대형 소송의 문제점과 그 대책 -계쟁이익의 집단화,확산화에 따른 해결방안을 중심으로-

이정환 ( Jeong Hawn Lee ) 영남대학교 법학연구소 2014 영남법학 Vol.0 No.38

현대형 소송에는 공해의 다수 피해자가 손해배상이나 금지를 구하며 제기하는 공해소송, 약해의 다수 피해자가 손해배상 등을 구하며 제기하는 약해소송, 지역주민이 개발에 의한 환경파괴를 방지하기 위하여 공사의 금지를 구하며 제기하는 환경소송, 소비자가 개별적으로는 소액이지만 대량의 소비자 피해의 구제를 구하며 제기하는 제조물책임소송 등의 소비자소송, 의료 환자가 의료사고에 의한 손해배상을 구하며 제기하는 의료과오소송 등이 있다. 이러한 현대형 소송에서 이들 모두에 공통하는 특질을 추출하는 것은 곤란하지만, 몇몇의 유형에 공통하는 요소가 있는 것을 부정할 수는 없다, 즉 피해자가 결집력이 약한 소액 다수의 피해가 발생되고, 피고가 국가, 공공단체, 기업 등으로 원고인 일반 소시민과의 분쟁에 있어서 증거가 편재되어 있어 강자와 약자라는 실질적 불평등관계가 형성되어 양당사자의 완전한 평등을 전제로 하는 종래의 민사소송을 적용하기 어려운 점이 생기게 되었다. 종래의 법원의 역할은 양당사자의 중간에서 공정한 심판자의 역할만 하였으면 충분하였지만, 현대형 소송에서 법원은 판단작용 뿐만 아니라 입법의 잘못과 행정적 과오에 기인한 경우에도 중립적 제3자인 법원의 판단역할이 절실히 필요하게 된다. 이러한 공통성을 갖는 현대형 소송은 소송의 국면에서 종래의 전통적인 소송과는 질적, 양적 차이가 있으므로 소송절차 또는 소송법이론에 새로운 대응을 요구하고 있고, 그 적용에도 대폭적인 수정 내지 새로운 제도의 병행실시가 요구된다고 할 것이다. 이에 본고에서는 현대형 소송이 전통적인 절차나 이론에 어떠한 영향을 미치는지, 현대형 소송이 부담하는 역할과 특징에는 어떠한 것이 있는지, 이에 동반되는 문제점을 살펴보고, 이를 토대로 이러한 문제점을 극복하기 위한 여러 방안들 중 계쟁이익이 집단화되고 확산됨에 따라 발생되는 당사자적격의 문제를 극복하기 위한 대책을 중심으로 검토한다. Majority of victim wants compensation for damages or prohibition and suing lawsuit for public nuisance, damage from agricultural chemicals wants compensation for damages and suing damage from agricultural chemicals, a local resident caused by development, wants to prohibit for preventing destruction of the environment and suing environmental lawsuit, relatively a little bit to consumer, wants majority of consumer`s damage relief and suing product liability lawsuit, consumer lawsuit, and medical patient caused by medical accident wants compensation for damages and there is suing malpractice suit in modern lawsuit. It is difficult to extract common things to all of those in this modern lawsuit, but it is undeniable to exist common element to several types. In other words, because the victim`s damage is caused by weak unity of sall sum, evidence is omnipresent to plaintiff the petty bourgeois for defendant which is in nation, public organization, and company, because there is practical, unfair relation between the strong and the weak, traditional civil suit which is subject to each directly person`s total equality is hard to apply. It is sufficient to play role as impartial judges in the middle of each directly person for traditional role of court, but the court is needed to not only judgment action but also neutral court`s judgment action which comes from legislative mistake and executive error as the third party in modern lawsuit. Because modern lawsuit having this community differs from traditional suit in situation of lawsuit, new action is demanded to judicial procedure or legal procedure law theory, and swingeing modification or new action`s concurrent operation would be demanded in its application. Therefore, in this manuscript, we search how modern lawsuit affects to traditional procedure or theory and what modern lawsuit bears in the role and feature, search accompanied matter. On the basis of it, among several measures for those matters The each directly person`s problem which is caused by a lawsuit profit with collectivization and diffusion of lawsuit profit loosk into overcoming measure as the central figure.

판결의 반사적 효력

이정환 ( Jeong Hawn Lee ) 영남대학교 법학연구소 2013 영남법학 Vol.0 No.36

판결의 부수적 효력의 하나로 거론되고 있는 반사적 효력이란 일반적으로 제3자가 직접 판결의 기판력을 받지는 않지만, 당사자간에 기판력의 구속력의 있는 것이 당사자와의 특별한 의존관계에 있는 제3자에게 반사적으로 이익 내지는 불이익한 영향을 미치는 효력 또는 당사자 사이의 소송물인 법률관계에 제3자의 법적 지위가 실체법적으로 의존할 때에 당사자 사이의 확정판결이 그 제3자에게 유리 또는 불리한 실체법상의 효과를 미치는 경우를 말한다. 반사효가 인정되기 위해서는 제3자가 당사자와 실체법상의 의존관계가 있어야 하는데, 구체적으로 당사자가 소송에서 다투어지는 권리관계에 관하여 판결의 기준시에 판결내용과 같은 계약 또는 처분행위를 하였을 때에 제3자가 그에 따르는 지위에 있어야 한다. 이러한 반사효는 채무자와 보증인간의 보증채무에 대한 부종성, 합명회사와 그 사원의 법적 지위에 따른 의존관계, 공유재산의 대한 공유자 상호간의 의존관계 등의 경우가 문제된다. 반사효를 인정ㆍ불인정할 것인가 또는 현실적으로 인정할 필요가 있는가에 대하여는 기판력의 본질론과 관련하여 다툼이 있는데, 반사효부정설, 반사효설, 기판력확장설, 판결효원용설 등이 그것이다. 본고에서는 판결의 부수적 효력의 하나로 거론되고 있는 반사적 효력에 대하여 그 개념과 개념의 인정배경 및 요건, 반사효개념의 인정에 따른 문제점에 대하여 살펴보앗고, 판결당사자와 제3자가 실체법상 특수한 의존관계에 있다고 하여 이러한 판결의 반사적 효력을 인정하는 것이 우리 민사소송법상 허용될 수 있는지, 현실적으로 이를 인정한 필요성이 있는지의 여부에 대하여 반사효가 문제되는 경우를 중심으로 그 인정근거를 주장되는 견해별로 고찰하여 검토하고자 한다.

의료과오소송에서의 증명방해이론 : 증명방해의 소송상 제재의 근거와 효과를 중심으로

이정환(Lee Jeong Hawn) 원광대학교 법학연구소 2013 의생명과학과 법 Vol.9 No.-

Term of medical malpractice litigation has not been accurately defined as a legal concept but it may be defined as a suit filed by the part of patients pursuing damage compensation against the people including medical professionals, who provided a medical practice at issue, and alleging that "the accident occurred out of the fault made in the course of such medical practice. In these medical malpractice litigations, it is difficult to prove the existence of objective facts causing a medical malpractice because: reenactment of such facts is hard to be made compared to those of other litigations for general damage compensation; and most of evidence in medical malpractice litigations are owned by the dependants, which make it hard to prove without cooperation of those dependants. Thus, it is said that this difficulties in fact proving is caused by the nature of medical practice itself. Therefore, applying general theories of burden of proof to medical malpractice litigations is necessary to be adjusted based on realities of medical malpractice litigations because such application may result in an one-sided disadvantage of difficulties in proving evidence on the patients, the plaintiffs, whatever the cause of action of such medical malpractice litigation is tort or failure to perform obligations. In response, it has been actively discussed to adopt theories including theory of alleviation of burden of proof, theory of conversion of burden of proof and the one of hindrance to proof of evidence. In this paper, I would like to deal with the theory of hindrance to proof of evidence and, under that theory, in the event that the evidence proving of a party having burden of proof becomes significantly difficult or impossible due to intentional misconduct or negligence of the opposite party having no burden of proof, such circumstances must be considered and adjusted in fact finding as an advantage of the party having burden of proving. In our country, this theory of hindrance to proof of evidence started to be discussed in 1970s and, on March 10, 1995, the Supreme Court in its decision adopted such theory with respect to the medical malpractice litigation on its reasoning that a party is allowed to have free suspicion so as to make the other party be at a disadvantage. Thereafter, lots of case laws based on such reasoning have been made so far. Under the present provisions of the Civil Procedure Act in Korea, there is no general provisions for judicial restriction and penalty on the conducts causing hindrance to evidence proving but only partial or specific provisions set forth them. In the event that the evidence proving of a party having burden of proof becomes significantly difficult or impossible due to intentional misconduct or negligence of the other party having no burden of proof, the other party should be imposed by certain punishment by the court and the theory of hindrance to proof of evidence appears at the stage. In such case, the issues are: if such conduct of hindrance is recognized, what kinds of judicial punishments must be imposed (considering their effects); and, if a punishment is imposed by the court, in what cases it can be justified (the grounds of punishment). In this paper, I examine the grounds and effects of judicial punishment under the theory of hindrance to evidence proving regarding medical malpractice suits in order to find alternatives to overcome the limitations of present laws in Korea so that a fairness is realized in the course of litigation in practice.

자백의 철회

이정환(Lee, Jeong-Hawn) 원광대학교 법학연구소 2009 圓光法學 Vol.25 No.3

Once the confession in a trial is established valid, the court of justice must base it as the ground of the verdict without asking the authenticity of the confessed fact. Also, the confessor is bound by the confession and is restricted from making fact assertions that opposes the confession. And the opposite party become unable to prove the existence of the confessed fact. In other words, a confession has the validity of excluding the jurisdiction of court on the confessed fact and at the same time has a binding force on the confessor. When taken in the perspective of the formation of litigation procedures, a confession makes the proof procedures of confessed fact, has the validity of procedure formation that advances the procedure and has the validity of settling the base fact of the judicial decision. Therefore, the confessor is not allowed to withdraw this in principle. A confession is a act of litigation, has no cancellation clause in the General Provisions of the Civil Code and can only be withdrawn by the exceptional conditions presecribed by the proviso 288 of the Code of Civil Procedures. While there was no clause concerning the withdrawal clause of confession in the old code of civil procedures, Germany installed the express provision allowing withdrawal if the confession does not concur with the truth and also can be proven to be from an error in the article 290 of German cold of civil procedures, and even in the old code the commonly view and precedents recognized the withdrawal of confession under the same condition and the above German code, taking into the above article under consideration. Also, among the withdrawal conditions of nontruth and error, an error simply means that the confessor misunderstood a specific fact at the time of confession, and does not mean error in the civil law, or incongruency between the validity intention and the indicated action. Because this is an action of litigation that has the characteristic of conception notification, in which the legal characteristic of a confession reports a specific fact on the court of justice in the justice, there is a precedent recognizes a confession caused by an error just by the intent of general pleading. However, strictly restricting the withdrawal of confession by the express provision 288 of the Cold of Civil Procedures is not natural when reviewed under comparative law. The clause 2, article 266 of the Austrian code of civil procedures make the validity of confession in justice to be up to the discretion of the court, and, even in the mother law country Germany, the condition of error is not strictly demanded as long as there is the proof of nontruth. Also, the code of civil procedure of Japan does not have any clause concerning the withdrawal of confession. The fact that the confession withdrawal conditions are applied in considerable mitigated form and the that the condition of the proof of error is mitigated in precedents in Germany provides sufficient grounds for an opportunity to review the confession withdrawal conditions. Especially If we recall that the article 263 of the German old code of civil procedure listing the proof of error as one of the confession withdrawal condition lead to an intense polemic on whether a confession as the confession characteristic is an intention indication or intention indication or conception indication and that the strict listing of confession withdrawal condition in the article 290 of the German code of civil procedures was thought as at least one cause of the distinction between claimed confession and fact confession in the polemic on the lawfulness of the claimed confession, the theoretical review of the confession withdrawal condition is a very important task. Therefore, in this article, the withdrawal conditions of confession in court is examined. The precedents of Korea on the proviso clause of article 288 of the Code of Civil Procedure, precedents of Japan where there is not a par

의료과오사건의 특성과 법률적 구성

이정환(Lee Jeong Hawn) 원광대학교 법학연구소 2013 의생명과학과 법 Vol.10 No.-

Medical malpractice means that is caused by medical professional to harm in medical process, preterm birth, nursing process or health hygiene. It is wrong or mistake in Medical personnel of the average level who had lazy own's duty to take caution. This is an accident of medical malpractice due to medical malpractice. The medical malpractice case, because it is a concept that encompasses up to something that is not litigation, rather than the concept of medical malpractice litigation, is a comprehensive concept. Unlike the general case, it is an area that requires highly specialized knowledge. In that case, the process of the medical know only patients, families and a doctor. In addition, medical technology for achieving the result of the treatment it depends on the discretion of the doctor. Therefore, the direct cause of loss whether the negligence of a medical doctor has the characteristic only know doctor. In particular, If an accident of medical malpractice is litigation, that has important implications in connection with the information. For liability due to malpractice, it can be divided into criminal liability and civil liability. Civil liability has an object that compensate for damage on relief of victims in relation to person-to-person. In contrast, criminal liability is that it is an object of national sanctions that punishment to pursue the anti-norms of the actors about certain acts in relation to state-to-nation. In this way, Criminal liability and civil liability are different in nature and purpose. Therefore, it is not necessarily responsible to occur at all times to individual medical malpractice. In modern society, it is expanding to the part of the recognition to medical practices that were not considered in the past. As a result, medical malpractice cases increased year by year, damages case of medical malpractice is also increasing. In this paper, we understand the characteristics of a medical malpractice case that is a prerequisite of medical malpractice litigation has increased gradually, and I examine what is the cause of the claim's legal structure of the theory for overcome about difficulties of medical malpractice's evidence.

의료과오에 있어서의 인과관계론

이정환(Lee Jeong Hawn) 원광대학교 법학연구소 2014 의생명과학과 법 Vol.11 No.-

If he is medical personnel of average according to principle of medical technique and medical common sense, Medical malpractice can be mistake or fault caused by neglecting medical obligation, generally which can be said in two case: One is the time someone must take charge of legal liability about medical treatment, the other is its own wrongdoing. Of course, you can see the mistake being included intentional doing, but usually Medical malpractice is used without intentional doing because already the mistake get out of medical practice's sphere as intention was involved. In order to be admit as a claim for damages due to medical malpractice, it needs causality between doctor's action and patient's damage caused by the action. usually causality premises cause and effect between a harmful act and loss occurrence, mean causality between a harmful act and indirectly damage, and is treated with connecting matter of trade imputation. However, in medical malpractice, doing particular action or nothing is unclear whether loss occurrence is attributed to doing or not, and it is frequently doubtful that wether misdiagnosis can be acknowledged by cause. In other words, naturalistically or scientifically judging causality is of course, difficult to judge empirical causality because causality in medical malpractice is related to specialized medical field. Therefore, judgement of causality must be performed by medical point of view, and when it comes to medical malpractice suit, it is demanded that you perceive how this specificity interact in causality. this fact is specificity of causality in medical malpractice. When it comes to malpractice suit in this specificity, default's cause on monetary debt is not independent with causality, and illegal act's cause will be considered with mistake including illegality or causality. Causality is sufficient to be proving as historical fact and scientific proof is unnecessary, which is also unnecessary because purpose of a civil trial focus on fairly solution. In the rapidly changing modern society, awareness about medical practice seems to grow extent to unimaginable part, medical malpractice accident and damage claim suit about medical malpractice is also annually increasing. Hence, we arrange the concept about object of obligation proof mitigation. On the basis of this arrangement, we check several theories with concerning causality in medical malpractice, A causal relationship theory fairly, recently disputed probability theory or realistic causality theory, and dynamic causality theory. We want to make sure of objectivity about standard setting of causality by examining a standard of judgment of causality existence.

의료과오소송에서 의사의 설명의무

이정환(Lee, Jeong-Hawn) 원광대학교 법학연구소 2014 의생명과학과 법 Vol.12 No.-

In rapidly modern society, awareness about medical practice expands unimaginably. Medical malpractice that has intrinsic, customary trait incre ases annually and a damage suit about malpractice also does. The doctor and patient should listen carefully each other in medical m alpractice. They should exchange opinions while patient has to demand e nough pre-explanation itself. In malpractice suit, explanation duty of doctor is that normally the pat ient can have to exert self-determination based on personal rights and in cluding explanation about symptom, content of therapy method, content of therapy method and danger when the doctor implements medical practic e accompanying physical invasion. Such awareness is that patient is not just object treated but, subjective existence. Therefore importance of expl anation about patient grows as meaning of self-determination of each individual. In connection with such explanation duty of doctor, the doctor does not give the patient enough explanation about possibility of bad result. If the doctor give the patient such like explanation, it is preliminary consideration of malpractice suit that the patient did not receive treatment. explanation duty of doctor is for patient’s choice as the patient compares fully necessity or danger with medical practice. the reason why we adopt non-violation theory of explanation to malpractice suit was started from proving obligation to relax theory. Explanation duty of doctor can be discussed according to malpractice’simportance, receiver’s ability about explanation duty, degree of invasion, time to performance of a duty, arraign of implied·presumptive, being able to acknowledge unpredictable danger in view of contemporary medical state, whether such explanation duty affect the doctor advantageously or adversely. But this manuscript just looks through grounds, legal temper and legal content of explanation duty, proving obligation and violation effect about explanation duty violation because of limitation of paper.

의료사고에서 후발손해의 발생 및 정기금배상의 적용 필요성

이정환(Lee, Jeong-Hawn) 원광대학교 법학연구소 2014 의생명과학과 법 Vol.12 No.-

Because medical malpractice suits are about human's life and body, they can affect medical personnel in financial bankruptcy as obligation to compensate is admitted. For example, if serious encephalopathy or persis tent vegetative state happen to patients because of medical malpractice, hospital conducts medical judging body to comprehend loss of disability. through medcal jdging body, rate of loss of labor capacity, life expectancy, and additional expense to medical treatment will be caculated because disability of patients remains uncomplete condition. Therefore, doctor takes more lage range of charge, in such case court orders a lump sum allowance compensation and financially situation can be worse. In addition, becacuse life expectancy is not definite in modern medical science level, the average of judging body is determined by contemporary life expectancy on settling money. So, if contemporary life expectancy is over and the patient continuously lives, expanded damage matters. Way to give punitive damages is two. The one is a lump sum allowance compensation as mostly admitted, the other is installment compensation as exceptionally. But, korean court's tendency in civil liability of mdern medical malpractice to reckon compensation for damages hesitates definite installment because of lack of ensuring performance. Just merely, as mdical expense and nusing expense caused by illegalact of body invasion, it is possible to receive regularly for another use of money. In civil liability of medical malpactice, when late loss appears because result of judging body or averge on settling money is changed, previous jugement or settlement matter. And on chargeing excessive compensation, it matters to give installment compensation. Thus, in view of patient how desirably court makes up for disability, and in view of doctor how to distribute for compensation of medical personnel needs. So, in this manuscript, firstly when unpredictable late loss is ordered, admirable grounds about that late loss will be considered. Also, such admission in medical malpractice brings expansion of compensation, because through later suits judging body is not always same condition. for this reason, adaptable necessity will be discussed in that installment compensation can be alternative.

회사관계소송과 자백 -주주총회 결의무효확인소송의 법적 성질과 대세효를 근거로-

이정환 ( Jeong Hawn Lee ) 연세대학교 법학연구원 2011 法學硏究 Vol.21 No.2

As filing identity and filing period are legally fixed for the lawsuit to cancel company establishment and the lawsuit to cancel resolution made in shareholders meeting and the judgement to quote it has effect of general situation, it is a common view to understand it as forming lawsuit. Additionally, lawsuits to invalidate merge and establishment are also interpreted in the same manner. On the other hand, though the clause 380 of the commercial law is applied to clause 190 for the expansion of judgement`s effect in a lawsuit to confirm the invalidation of resolution invalidated, there is no legal regulations for the method to claim, filing identity and filing period. However, in case of claiming the invalidation of resolution through a lawsuit, the general effect of special lawsuit procedures and verdict in favor are recognized as the company lawsuit based on the commercial law in the procedure of civil suit to fix regal relation uniformly. Though the company related lawsuit is not the procedure of lawsuit based on the theory to detect authority, the reason that validity of verdict has effect of general situation influencing the third party is to settle down legal relation with companies uniformly and prevent the repetition of lawsuit. In the company related lawsuit, the topic of this paper, the problem of applying confession legally needs to be discusses in relation with effect of general situation. Because it is recognized when public interest with highly probable truth is judged to exist, and effect of general situation is mentioned as a background of theories to detect authority in relation with the fact on which principles are adopted for collecting lawsuit data. However, as a verdict to cancel resolution, the cancellation of unreasonable resolution, a verdict to confirm change are forming judgements, the range of Res iudicata power generally influences the third party based on its attributes, but opinions are opposite each other for the fact on whether a verdict to confirm the invalidation of resolution and a verdict to confirm the nonexistence of resolution are forming lawsuit or confirming lawsuit. As effect of general situation is brought about in forming lawsuit and rarely has relation with confirming lawsuit, it is indispensible to review it. Accordingly, this paper focuses on reviewing the lawsuit to confirm the invalidation of resolution in shareholders meeting among company related lawsuits, and excludes other company related lawsuits. In other words, this paper grapes the legal characteristic of lawsuit to confirm the invalidation of resolution and reviews the general effect for it, additionally, derives the fact on whether confession is accepted in the company related lawsuit based on it.