항소심에서 한 특별대리인선임신청을 기각하는 결정에 대한 항고의 성질

• 발행기관: 한국민사소송법학회
• 저자명: 문영화
• 간행물 정보: 『민사소송』제22권 제1호, 181~212쪽, 전체 32쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2018.05.30

영문 초록

In Ruling 2014Ma397 on May 7, 2014, the Supreme Court ruled that the case based on Article 64 of the Civil Act should be tried in accordance with the Non-Contentious Case Procedure Act and the appeal against the ruling of the original court is not a reappeal and transferred the case to Busan High Court, the competent court. The case was related to the application for the appointment of a special representative during the trial of the appeal and the applicant has received the decision which rejected the lawsuit in the court of first instance on the grounds that he was not a legitimate representative of the plaintiff, the other association than a juristic person. There are two types of applications for appointment of special agents. One is to apply in accordance with the Non-Contentious Case Procedure Act with respect to matters that conflict with the interests of the juristic person and the director under Article 64 of the Civil Act. The other is to apply for the appointment of a special representative in cases where the representatives of the juristic person are not able to exercise their right of representation due to legal obstacles on the basis of Articles 64 and 62 of the Civil Procedure Act. There are differences in the judgments on the application for the appointment of two special representatives, including the eligibility requirements, the applicant, the competent court, the grounds on the procedure, and the appeal method. Unlike legal acts in substantive law, the interpretation of litigation acts is subject to strict indication and appearance and can not be interpreted in conflict or contradictory with the displayed contents. However, if the obsessive obsession with the uniform and formal interpretation of the displayed phrase is excessive, it may lead to unfair consequences against the purposes of the parties concerned and the litigation economy. Therefore, It is necessary to interpret the litigation act objectively and reasonably by taking into consideration the intention of the party performing the act. Even if the applicant of the case of the Supreme Court’s ruling applied for the appointment of a special representative based on the Civil Act in the application form and did not properly specify the requirements for the appointment of a special representative under Articles 64 and 62 of the Civil Procedure Act, considering the circumstances in which the applicant needed to be appointed as a legitimate representative of the plaintiff in the appellate court proceedings, It seemed objectively and rational to interpret it as an application under Articles 64 and 62 of the Civil Procedure Act and there was no fault in the original court’s ruling that interpreted the application like that.

목차

Ⅰ. 사안의 개요

Ⅱ. 연구

키워드

민법에 의한 특별대리인 민사소송법에 의한 특별대리인 비송사건 절차법 법인과 이사의 이익이 상반하는 사항 법인의 대표자가 대표권을 행사할 수 없는 경우 Special Representative appointed on the basis of Article 64 of the Civil Act Special Representative appointed on the basis of Article 64 62 of the Civil Procedure Act Non-contentious Case Procedure Act Matters in which the interests of the juristic person and their own interests conflict with each other Cases where the representative of a juristic person is unable to exercise his/her power of representation