가사소송에서의 소송능력

• 영문명: Litigation Capacity in Domestic Litigation
• 발행기관: 한국민사소송법학회
• 저자명: 김원태(Kim, Won Tae)
• 간행물 정보: 『민사소송』제18권 제1호, 279~311쪽, 전체 33쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2014.05.30

영문 초록

The purpose of this study is to examine the litigation capacity of minors, adult wards, and limited wards in domestic litigation. The litigation capacity is needed to be examined from the aspect of theory of analysis and theory of legislation. Actions related to status cannot be subrogated by a legal representative; limited capable persons are considered to perform actions related to status separately when they have mental capacity. In domestic litigation of family relations, thus, is may be said that limited capable persons with mental capacity can file a lawsuit as a plaintiff without participation of a legal representative. Those who deny the litigation capacity of limited capable persons with mental capacity provide protection of profit of the limited capable persons as the ground. Although what is profit of the limited capable persons is not clarified, there cannot be objections in that it is needed to protect the persons themselves. However, there may be differences in thoughts on how requests of protection of oneself and guarantee of autonomous decisions of oneself can be realized in legal procedures. Given the personal nature of status relationship, it is important to reflect the intention of oneself in legal procedures and, thus, it may be reasonable that limited capable persons are assigned of litigation capacity in principle when they have mental capacity. It is clear that adult guardianship is a double-edged sword and that stronger procedural guarantee is not always favorable, but the Domestic Litigation Act should be revised in order that the substantial law that has been introduced for utilization of remaining capacity of oneself can accomplish its intended goals. Assigning limited capable persons with litigation capacity is to guarantee the position of the principal agent of legal procedures not the object of procedure, and thus it may be associated with human rights based on dignity of individual. Therefore, in domestic litigations, limited capable persons should be able to carry out a lawsuit as the person directly involved when they have mental capacity. Now it is time not to substitute carrying out a lawsuit of limited capable persons by a legal representative but to prepare measures of supplementing capacity of performing litigation and of supporting performance of litigation of oneself.

목차

Ⅰ. 머리말

Ⅱ. 가사소송절차에서의 소송능력

Ⅲ. 가사비송절차에서의 비송능력

Ⅳ. 가사조정절차에서의 조정능력

Ⅴ. 맺는말

참고문헌

키워드

가사소송 가사비송 가사조정 소송능력 비송능력 조정능력 절차보장 절차보좌인 절차보호인 절차후견인 Domestic litigation Family non-litigation Family Mediation Litigation capacity Procedure capacity Mediation capacity Procedural guarantee Procedural assistant Procedural safeguard Procedure guardian