家事訴訟上 當事者의 變更

• 영문명: The Change of a Party in Domestic Litigation Process
• 발행기관: 한국가족법학회
• 저자명: 김연(Yeon Kim)
• 간행물 정보: 『가족법연구』가족법연구 제18권 2호, 289~319쪽, 전체 31쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.09.01

영문 초록

In ordinary litigation process in Korea, the party and the claim are so-called “the litigation constructing elements”, and should keep their identities throughout the procedure. If a element be changed in the midst of the process, the lawsuit lose its identity and become illegal against the “Dispositionsmaxime.” For that reason, the Korean Law of Civil Procedure does not allow a change of a constructing element like a party, with a few exceptions(art. 68, art. 260, and art. 81). Same maxim is ruled in the domestic litigation process. The Korean Law of Domestic Litigation, as a special law of the Law of Civil Procedure, has some provisions about change of a party, on addition or change of a party(art. 15) and on succession of a party(art. 16), in a domestic litigation process. But the provisions have several problems as follows: First, it is not good that the addition and change can be made till the end of pleading of the appeal court(art. 15). For the protection of interest of the new party, it is suggested that the change should be allowed till just the end of pleading of the first instance. Second, the effects of the change of the defendant should be cleared. Instead of the indistinct expression like “social status matters,” it should be provided obviously i.e., “interruption of prescription” and “observance of period.” Moreover, it is needed to contrive a proper measure for the defendant succeed the result of the litigation. Third, it can be admitted, in the point of view to adjust the condition of the litigation, for the court to decide of approval of application of discretional change of a party which is corresponding to a de facto law suit instituting, but it is not easily understood why the applicator to affix 500 won stamp to the application contrary to the law-suit bill. Fourth, it is better to abolish the provision of succession of a party which is not used well in domestic litigation. If not, a reformation is needed to make the condition of succession distinct. And the meanless provision which says “It is considered to be withdrew if the succession application is not filed in 6 months.” should be deleted.

목차

Ⅰ. 글머리에

Ⅱ. 家事訴訟法上의 當事者 變更

Ⅲ. 當事者의 追加 및 更正

Ⅳ. 訴訟節次의 承繼

Ⅴ. 맺는 말

참고문헌

ABSTRACT