사위판결에 대한 소송법상 구제책

• 영문명: Remedies for Erroneous Judgements by Civil Procedure Law
• 발행기관: 충북대학교 법학연구소
• 저자명: 서창원(Chang Weon Seo)
• 간행물 정보: 『법학연구』第35卷 第2號, 213~244쪽, 전체 32쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2024.12.31

국문 초록

Defraudation of judgment is when a party deceives another party or a court in bad faith and obtains an unfair judgment. This is called the wrongful acquisition of a judgement, and the judgement obtained in this way is called a ‘erroneous judgment’ or ‘fraudulent judgement’. The main types of judgement extortion are ① obtaining a judgement through a name misappropriation lawsuit, ② creating a cause for the defendant's non-appearance through a settlement agreement, but the plaintiff attends only himself without settlement and obtains a judgement using the defendant's non-appearance, ③ obtaining a judgement without the defendant's knowledge by deceiving the court into proceeding with the trial by service by public notice despite knowing the defendant's address, ④ The defendant's address is falsely written on the complaint and the copy of the complaint is served to that address so that the plaintiff or his or her servant receives it instead of the defendant, thereby deceiving the court into believing that the defendant himself has not filed an answer even though he or she has been served and obtaining a judgement of no contest on the basis of the defendant's confession[the Civil Procedure Law 257(1)] and ⑤ The defendant files a lawsuit despite having no substantive claim and submits false evidence in the lawsuit. In this article, we will limit our discussion to the remedies under the Civil Procedure Law for the types of ③(Service by public notice) and ④ (Consideration of confession, for which there are conflicting theories of appeal, subsequent supplementary appeal·retrial, retrial·appeal combination and nullity, and the Supreme Court has taken the position of appeal), which are not in agreement, it seems that it is difficult to find papers on these two topics and only the five Supreme Court cases can be found, ranging from the Supreme Court's Decision 75DA634 by a plurality of 9th May 1978 to the Supreme Court's Decision 94DA41010 of 9th May 1995, and it seems that it is difficult to find Supreme Court cases related to this afterwards. Based on the review of the above two types of cases, it can be concluded that the position of the majority of theories and the Supreme Court precedents that allow a retrial or a subsequent supplementary appeal as a remedy for a erroneous judgment by service by public notice is reasonable from a legal and practical point of view, However, the above various theories and the Supreme Court precedents regarding the remedy for a erroneous judgment based on consideration of confession are not only difficult to find legal validity, but also suffer from the unreasonableness of not being able to obtain a substantive remedy without filing a separate complaint in accordance with the ‘Guidelines for Business Handling of Applications for Registration by Enforcement Authorities of Judgments, etc.(Regulation No. 1692)’. Since it seems to be legally consistent to hold that the consideration of confession type judgement is invalid due to the lack of a real adversarial structure(regardless of the existing theory of nullity), it seems that the remedy for this type of judgement is to file a separate complaint rather than an appeal or retrial, which is both theoretically and practically necessary. This article is intended to set the stage for further discussion, subject to reasonable modifications.

목차

Ⅰ. 판결 편취의 개념과 그 유형

Ⅱ. 실체법상의 구제방법

Ⅲ. 공시송달에 의한 경우의 소송법상 구제방법

Ⅳ. 자백간주에 의한 경우의 소송법상 구제방법

Ⅴ. 마치며

키워드

판결의 편취 사위판결 공시송달 자백간주 항소 추후보완항소 재심 Defraudation of judgment Erroneous judgment Service by public notice Consideration of confession Appeal Subsequent supplementary appeal Retrial

참고문헌

• 저스티스
• 법조
• 법학연구