민사소송법 제51조에 대한 비판적 고찰

• 영문명: A Critical Review on Article 51 of the Civil Procedure Act - From the standpoint of litigation law -
• 발행기관: 한국민사소송법학회
• 저자명: 장완규(Jang, Wan Kyu)
• 간행물 정보: 『민사소송』제21권 제2호, 59~87쪽, 전체 29쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2017.11.30

영문 초록

I would like to examine the interpretation of Article 51 of the Civil Procedure Act, which is one of the topics that I have always been wondering about while studying the Civil Procedure Act and teaching it to students. Through this presentation, I hope that it will be a place to share and discuss personal thoughts and opinions stemming from questions about interpretation. As we well know, Article 51 of the Civil Procedure Act (hereinafter referred to as the “Act”) sets out principles on the ability of the parties in the proceedings and their ability to act. In other words, the g ranting of the necessary powers for the leg al representation of the party ability (competent ability), the litigation ability (litigation ability), the disability incapacitated person (litigation incompetent) and the litigation act shall be limited to civil law and other laws. Generally, the ability of a party in civil litigation is the ability to be a plaintiff, defendant, or participant with general ability to be the subject of litigation. Litigation capacity refers to the ability of a party to act effectively in litigation or in order to obtain litigation. And, according to the legitimate view, such ability is subject to civil law and other laws pursuant to Article 51 of the Act. It is often interpreted that the ability of the parties to respond to the “rights ability” of the civil law and the ability of litigation to respond to the “ability of action” of the civil law. However, even if there is the ability to act according to the act ability system, it is natural for the general principle of the judiciary to examine the deficiency of the doctors ability individually and specifically about the legal act. In addition, the capacity of litigation responds to the ability of the civil law to act, but the effect is not canceled, but the claim is invalid. As most of the doctrines say, of course, if you understand the litigation capacity in accordance with the Litigation Act in correspondence with the Act of the substantive law, it can be a problem in the following points. First, there is a lack of clear evidence that both should be dealt with. In addition, if the litigation capacity corresponds to the capacity of the actual law, the scope of the litigation capacity may be somewhat different from that of the actual capacity. In other words, I interpret the relationship between the parties ability and right ability, and the lawsuit ability and the ability to act like this, and point out the problem with the question about what has been understood as a natural premise First, through the interpretation of Article 51 of the Act, can the concept of “ability” in the Civil Law be found in the concept of “ability” of civil law? Or is it something that can be found in other laws? Even if it is based on the concept of ability of the civil law, it is still questionable whether the party ability corresponds to the rights ability and the litigation ability corresponds to the acting ability. Due to recent amendments to the Civil Law, there has been a great change in the ability to act with the introduction of the new concept of restrictive ability. In connection with this, the Civil Procedure Law also changed the lawsuit capacity regulation. Of course, academic discussions and presentations have been held in the academic world, which has led to the analysis and reexamination of Article 51 of the Law. In particular, lawsuits and legal acts are essentially different. In addition, although the litigation ability and the acting ability do not coincide with each other, the argument that the litigation ability corresponds to the ability of the civil law act is accepted by the majority opinion now. In fact, disagreements and problems can easily be found in terms of both the contents of regulations and application process. Therefore, in the following, we first consider the relationship between substantive law and procedural law (litigation law),

목차

Ⅰ. 논의의 출발점

Ⅱ. 실체법과 절차법(소송법)의 관계

Ⅲ. 민사소송법 제51조에 관한 기존의 해석과 논의

Ⅳ. 기존 논의에 대한 비판 – ｢소송능력｣ 개념과 ｢행위능력｣ 개념의 본질적 차이에 대한 이해

Ⅴ. 소송법 독자의 ｢능력｣ 개념에 대한 정립

Ⅵ. 마 무 리

참고문헌

키워드

민사소송법 제51조 소송능력 행위능 력 실체법과 절차법 준용 Civil Procedure Act Article 51 Litigation Capacity Legal Capacity Substantive law & Procedure Application mutatis mutandis