항고의 제기에 따른 경정결정에 대한 불복방법

• 영문명: Method of Objection to the Decision of Correction based on the Filing of an Appeal against the Decision
• 발행기관: 한국민사소송법학회
• 저자명: 김연
• 간행물 정보: 『민사소송』제27권 제3호, 1~33쪽, 전체 33쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2023.10.31

영문 초록

It is a natural rule of law also in Korean Civil Procedure that a party who has been judged unfavorably in the trial process should have an opportunity to appeal. However, an appeal was filed against the judgment of the first trial court, and when the presiding judge of the first trial court who received the appeal rejected the appeal because the requirements of the letter of appeal were defective, the appellant filed an immediate appeal, claiming that the defect was supplemented. Also, if the court of the first instance reviewed the immediate appeal and decided to correct the order to dismiss the appeal in recognition of it, there is a question of whether the other party disadvantaged by this can object to this correction decision. There is little discussion about this problem in academic field, but the recent precedent from the Supreme Court of Korea ruled that if the objection is not allowed at this time, unfairness will occur between the two parties, and that only a special appeal will be allowed at this time, violating the constitutional right to request a trial, so an immediate appeal can be filed by applying mutatis mutandis to the provisions on the correction of the judgment of the Act of Civil Procedure of Korea. However, the explanation of the precedent is not correct. First, the appellant's immediate appeal is against the order to dismiss the letter of appeal, but the method of objection that must be recognized by the other party relates to the correction decision, and the level is different. Second, it is not uncommon for both parties to be able to object only unilaterally, without necessarily acknowledging objections to both parties if necessary in civil proceedings. Third, even if an objection to a correction decision is not admitted, there is usually an opportunity to claim it later. Fourth, it is not correct to admit the correction because the correction procedure of the judgment applied mutatis mutandis by the court and the correction decision in the appeal procedure are quite different. Fifth, acknowledging a special appeal does not violate the parties' constitutional right to request a trial. Based on these points, it was concluded that the method of objection to the correction decision does not necessarily have to be recognized, and that the method of objection does not have to be an immediate appeal.

목차

Ⅰ. 들어가며

Ⅱ. 경정결정에 대한 불복가능성

Ⅲ. 경정결정에 대한 불복 가능성의 이론적 검토

Ⅳ. 맺는 말

키워드

경정 결정 항소장의 심사 불복방법 즉시항고 특별항고 Decision of correction examination of the letter of appeal method of objection immediate appeal special appeal