확정판결의 효력범위에 관한 몇 가지 문제점 고찰

• 발행기관: 한국민사소송법학회
• 저자명: 권혁재
• 간행물 정보: 『민사소송』제10권 제1호, 77~112쪽, 전체 36쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.05.30

영문 초록

This thesis is a survey on the way to increase the credibility and legal stability of court’s judgement. One way of accomplishing those purposes is to put an end to disputes by one time litigation which full and fair chance is given to both plaintiff and defendant and they do their best for the efficient conduct of the litigation. At that litigation the court pronounce a valid and final judgement, that will be conclusive between the parties, and they should be precluded to bring a successive actions be based on different objections of action but involving the same questions or issues. In Korea, at the judicial precedents of supreme court and the majority opin-ions of the academic circle of civil procedure law, the theory of issue preclusion isn t accepted. So even though one party losed at former litigation, he can claim a successive action be based on the same questions or issues, and the court of the action(suit) can reverse the decision of former court about the same questions or issues. I think that it will be the cause of legal instabililty and the distrust to court. On my opinion, the theory of issue preclusion is crucial to put an end to dis-putes and to bar successive actions be based on the same questions or issues. Through those methods we can increase the credibility and legal stability of judgement and due process in civil procedure. The Korean Civil Procedure Law(2001 revised) adopts the method of con-centrated trial for persueing utility of civil procedure and recovering authority of court. The provisions of the Korean Civil Procedure Law will accelerate to in-trodure the American civil procedure system and the theory of issue preclusion. For accomplishing those purposes, we must make the civil procedure system to shape main issues at earlier time of procedure and concentrating the energy of court(judge) and concerned parties(plaintiff, defendant, privies) to those issues. To shape (joinder) main issue efficiently, we should change traditional oral proceed-ings system. In designing a procedural system court judge must control over the development and presentation of a case and the issues in a case. The conclusion of this thesis is Korean precedents must introduce the theory of issue preclusion which has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judical economy by preventing needless litigation. In short, by accepting the theory of issue preclusion, we can accomplish to curtail the resources of judicially system and speedy civil action.

목차

Ⅰ. 들어가는 말

Ⅱ. 판결의 증명적 효력설의 내용

Ⅲ. 쟁점배재효 법리의 전개

Ⅳ. 맺는말

참고문헌

키워드

쟁점효·쟁점배제효 금반언 원칙 주요쟁점 쟁점정리 판결효 판결의 증명효 collateral estoppel issue preclusion estoppel rule in civil procedure main issue main isue arrangement effect of judgement evidentialy effect of judgement