사법분야 투고논문 : 민사소송에 있어서 특정승계인의 범위 = Research on Scope of Limited Successor in Civil Procedure

다국어 초록 (Multilingual Abstract)

In civil suit, the scope of limited successor becomes an issue in two areas. One is the scope of a successor after the completion of oral proceedings with effect of excluding further 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 proceedings with effect of excluding further litigation introduced the theories on the scope first. Then explaining the scope again by comparing the theory of legal form and the theory of substance was general practice. The scope of a successor in the succession of a lawsuit was also discussed in similar way by understanding it together with the scope of a successor after the completion of oral proceedings. However, there remains a question whether it is reasonable to independently discuss the comparison of theories and the comparison of new and old theories of lawsuit subject matter. In order to understand the whole picture of successor scope, it is believed that the opposition of theories should be absorbed by new and old theories of lawsuit subject matter, or, the new and old theories of lawsuit subject matter should be absorbed into the opposition of theories and discussed in a single system. Meanwhile, the reliance theory does not have relation with new and old theories of lawsuit subject matter, which constitutes the 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. The standing to succeed theory cannot be explained by relating it either to new theory or old theory of lawsuit subject matter because it is supported by both new and old theories of lawsuit subject matter. The due process guarantee theory is being developed without any direct 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 directly reflected 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 lawsuit subject matter to the scope definition of a successor should be blocked. The theories should be classified into reliance theory, standing to succeed theory based on old lawsuit subject matter 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 would be more useful to understand the whole picture when the opposition in successor scope dependent on the nature of claim right and the opposition between theory of legal form and theory of substance would be analyzed by relating them to above theories. Among the theories, the due process guarantee theory seems the most reasonable theory because it puts priority on the guarantee of process between a successor and the opposite party of the previous owner as it identifies the essence of excluding further litigation effect from the viewpoint of legal procedure law.