변론종결 후의 승계인에 대한 기판력ㆍ집행력의 확장 = Res iudicataㆍexecutive power expansion about successor after argument concluding

다국어 초록 (Multilingual Abstract)

"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.

목차 (Table of Contents)

• Ⅰ. 문제의 제기
• Ⅱ. 변론종결 후의 승계와 기판력 확장
• Ⅲ. 변론종결후의 승계와 집행력 확장
• Ⅳ. 추정승계인
• Ⅴ. 결 어
• 참고문헌
• Abstract

참고문헌 (Reference)

1 金祥源, "주석민사소송법Ⅲ"

2 皮貞鉉, "변론종결후의 승계인에 대한 판결의 효력" (10) : 1999

3 김광년, "변론종결후의 승계인" (1월) : 1981

4 한충수, "변론종결후의 승계인" (517) : 2000

5 임대화, "변론종결후의 승계인" 15 : 1984

6 대법원 홈페이지, "법률종합정보"

7 홍기문, "민사소송법" 대명출판사 2005

8 中野貞一郞, "辯論終結後の承繼人in民事訴訟法の爭點Ⅰ」" 判例タイムズ社 1994

9 伊藤眞, "辯論終結後の承繼人in民事訴訟法の爭點" 有斐閣 1998

10 新堂幸司, "訴訟當事者から登記を得た者の地位(1.2)" (152) : 1971

11 新堂幸司, "訴訟物の爭點效(上)" 有斐閣 1988

12 兼子一, "民事訴訟法體系" 酒井書店 1980

13 전병서, "民事訴訟法講義" 법문사 2005

14 강현중, "民事訴訟法" 박영사 2004

15 정동윤, "民事訴訟法" 법문사 2007

16 김홍규, "民事訴訟法" 삼영사 2008

17 송상현, "民事訴訟法" 박영사 2008

18 호문혁, "民事訴訟法" 법문사 2008

19 송상현, "民事訴訟法" 박영사 2004

20 小林秀之, "新民事訴訟法" 判例タイムズ社 2005

21 이시윤, "新民事訴訟法" 박영사 2008

22 김용진, "實體法을 통하여 본 民事訴訟法" 신영사 2008

23 上野泰男, "執行力の主觀的範圍in民事訴訟法の爭點" 有斐閣 1998