판결확정 후 피해자의 사망 또는 가동능력의 향상에 일시금지급확정판결에 미치는 영향

• 영문명: Effect of death or advancement of impaired earning capacity of injured party on the final and conclusive judgment of lump-sum recovery
• 발행기관: 한국민사소송법학회
• 저자명: 박찬주(Park Chanju)
• 간행물 정보: 『민사소송』제16권 제1호, 171~234쪽, 전체 64쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2012.05.30

영문 초록

In this article, the writer gropes for the possibility of reclaiming the proportionate amount as unjust enrichment due to the death or advancement of impaired earning capacity of injured party after the final and conclusive judgment had been adjudged and executed. Several points the writer asserts in the groping process are as following. Firstly, the writer upholds the substantive law theory about the nature of res judicata. Secondly, if a final and conclusive judgment is adjudged on a money–claiming lawsuit, the grounds of demurrer against claims relate only to executive title regardless of the substantive legal relationships before raising that lawsuit or the substantively demurring grounds, and the remedies for unrighteous judgment must be discussed separately with the nature of demurrer against claims. Thirdly, the writer admits the existence of possible circumstances to raise lawsuits for recovery of damages or lawsuits for reclaiming unjust enrichment without revocation of the final and conclusive judgment through procedure for a retrial. But the writer does not opine the extent of those possible circumstances owing to the characteristics of this article. Majority opinions of scholars and the precedents permitting lawsuits for recovery of damages or reclaiming unjust enrichment assume the final and conclusive judgment unrighteous ones. But the writer asserts this assumption does not have considerable meaning in discussing the permission of reclaiming the proportionate amount as unjust enrichment due to the death or advancement of impaired earning capacity of injured party after the final and conclusive judgment had been adjudged and executed, as that judgment is not an unrighteous one when it was adjudged. Instead, the writer seeks the possible grounds from the jurisdiction of lawsuit of ownership transfer registration for recovery of true ownership and from the jurisdiction of lawsuit for reclaiming conspicuously increased rent–equivalent unjust enrichment owing to the skyrocketing economic circumstances.

목차

Ⅱ. 지금까지의 학설·판례의 입장

Ⅲ. 검 토

Ⅳ. 확 장

Ⅳ. 맺는말

참고문헌

키워드

기판력의 본질 실체법설 모순금지설 반복금지설 청구이의의 소의 본질 청구이의사유 부당판결 정의와 형평 진정명의회복을 위한 소유권이전등기소송 nature of res judicata substantive law theory prohibition theory of contradiction prohibition theory of repetition nature of lawsuit of demurrer against claims grounds for demurrer against claims unrighteous judg-ment justice and equity lawsuit of ownership transfer registration for recovery of true ownership