訴訟係屬論 一顧

• 영문명: A Study on Pendency of a Lawsuit
• 발행기관: 한국민사소송법학회
• 저자명: 강구욱(Goo-wook Kang)
• 간행물 정보: 『민사소송』제28권 제2호, 1~36쪽, 전체 36쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2024.06.30

국문 초록

In this article, I overviewed the precedents and the common view regarding the concept and the timing of pendency of a lawsuit, examined the theoretical and comparative legal issues, and examined the consistency of the precedents and the common view with the provisions of the Code of Civil Procedure relating to pendency of a lawsuit. In doing so, I demonstrated the problems with the following views; the view that pendency of a lawsuit occurs only when the defendant is served with a copy of the complaint and a three-way legal relationship among the plaintiff, the defendant and the court is established; the view that pendency of a lawsuit occurs upon service of the complaint, which can only be argued under the rules of the German Code of Civil Procedure and the Meiji(明治) Code of Civil Procedure in Japan, even though our rules on filing and pendency of a lawsuit differ significantly from those of those countries; and the view that such a view is inconsistent with the rules of the Code of Civil Procedure Article 40 on the effect of transfer of an action, Article 53 on selected parties, Article 62 on special representatives for incapacitated persons, Articles 71 and 72 on auxiliary participation, Articles 81 and 82 on participation and acquisition of proceedings by successors, Article 84 on notice of proceedings, Article 233 on discontinuance and succession of proceedings due to the death of a party, Article 259 on the prohibition of duplicate filings, and Article 267 on the effect of Withdrawal of Lawsuit. In addition, if we consider the time when the pendency of a lawsuit occurs as the time of filing the lawsuit(the filing of the complaint), the problems that arise when interpreting the provisions of the Civil Procedure Act related to the pendency of a lawsuit(especially the rules on the suspension and continuation of proceedings due to the death of a party, the prohibition of multiple filings, and the effect of withdrawal of lawsuit) in accordance with the precedents and the common view can be completely resolved. Accordingly, I propose as a conclusion that a pendency of a lawsuit should be viewed as occurring when a lawsuit is filed.

목차

Ⅰ. 緖論

Ⅱ. 理論的·比較法的 檢討

Ⅲ. 判例·通說과 民事訴訟法 規定의 整合性 檢討

Ⅳ. 補論

Ⅴ. 結論

키워드

소의 제기 소장부본의 송달 소송계속 당사자의 사망 소송절차의 중단 중복된 소 제기 소 취하의 효과 filing of lawsuit Service of duplicate of written complaint pendency of a lawsuit death of a party suspension of litigation procedure double lawsuits effect of withdrawal of lawsuit