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정규상 한국민사소송법학회 2011 민사소송 Vol.15 No.2
“Third-party intervention to prevent an act of fraud” was first established under Japan’s previous Civil Procedure Act. This Act provided for both third-party interventions for purposes of claiming a right and third-party interventions for purposes of preventing an act of fraud; and these provisions were imported into the Korean Civil Procedure Act with no changes made thereto (other than for the fact that the order of these provisions were reversed). In this paper, the author reviews the legislative history and evolution of the relevant provision and identifies the following as the legal elements for third-party intervention to prevent an act of fraud:First, a review of the legislative history reveals that this provision was based on the theory of fraudulent intent. This, however, does not mean that the existence of fraudulent intent among the plaintiff and the defendant in a lawsuit is in itself sufficient to permit third-party intervention to prevent an act of fraud; rather, such intervention is permitted only if there is also a risk that the outcome of said lawsuit may have a detrimental effect on the interests of the third-party. In other words, although the provision is based on the theory of fraudulent intent, third-party intervention to prevent an act of fraud is permitted only if there is (i) a fraudulent intent, and (ii)an actual risk of harm to the third-party’s interests. In this sense, it may be said that the theory of fraudulent intent relied on by this provision is one of which scope has been broadened to a certain extent. Further, the determination of fraudulent intent is not a subjective one, but an objective one – i.e., whether, from the perspective of an ordinary person, such intent may objectively be said to exist. In connection therewith, a review of the relevant case law shows that courts make such determination by taking into account the attitude of the litigants, the claims made by the litigants and the third-party seeking to intervene, the evidence offered in substantiation of such claims, and the overall thrust of legal arguments. It is highly likely that the factors for determining the objective existence or non-existence of fraudulent intent will become more refined with the accumulation of relevant case law. Second, insofar as third-party intervention to prevent an act of fraud is concerned, case law holds that such intervention is appropriate even if the claims of the plaintiff and those of the third-party intervener are at odds with each other. Third, regarding the issue of whether, in the case of a third-party intervention to prevent an act of fraud, the claim of the third-party intervener must be at least as independent a claim as that of the plaintiff, the answer is no – such intervention should be permitted even if the third-party’s claim consists merely of a request for dismissal of the plaintiff’s claim against the defendant. Fourth, third-party intervention to prevent an act of fraud may be permitted if there is a need to dispose of the plaintiff’s claim and the third-party intervener’s claim in the same manner.
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문서제출의무 -일본에서 자기이용문서성인정에 관한 판례를 중심으로-
정규상 한국민사소송법학회 2009 민사소송 Vol.13 No.1
This Article reaches the following conclusion as to order for production of a document: (1) Korean legal academics may interpret in the same way as old civil procedural law prior to 2002 revision of Korean Civil Procedure Act the scope of the document which was executed for the benefit of the applicant (hereinafter "benefit document") or with respect a legal relation between him/her and the holder (hereinafter "legal relation document") under Article 344 (1) of Korean Civil Procedure Act. In particular, the said interpretation is thought to be proper as to the document used for the applicant in order to avoid systematic maldistribution of evidence; (2) Which documents will be determined first between benefit and legal relation ones is not of importance because the two is selective relation; (3) As far as the criteria to determine whether a certain document is one used for the applicant, Japanese case law put heavy weight on the objective nature of documents in terms of requirement for being an internal document, and categorized determination as to whether a document is not beneficial for the applicant. However, taking into account the contents and importance of a document, the purpose of litigation such as public interest action, and the status of the parties to an action, the court need to review and determine the factors by employing in camera proceedings or oder for partial production of a document; and (4) In terms of burden of proof related to the requirement for validity of order for production of a document, the applicant need to bear his/her burden to prove that his /her privilege not to produce a document does not exist. Hence, once the applicant prove it, the holder of the document need prove that the document falls within the scope of Article 344 of Korean Civil Procedure Act.
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정규상 한국민사소송법학회 2005 민사소송 Vol.9 No.2
The research focuses on the general theory on the admissibility of the illegally obtained evidences through relevant theories and precedents. Specifically, the recent issue on the illegality of telephonic wiretapping and recording call into attention the infringement of basic human rights. In the case of such violation, the violator is liable to not only the prosecution and reparation under the criminal law and the civil law but also the abatement of the admissibility of his/her illegal evidences. The extent of abatement should be determined by the establishment of juridical theory on the constitutional protection against the infringement of norm. In such context, the research primarily discusses: the extent of regulation of the subordinate legislations (i.e. the criminal law), the measure of the violation of law and the significance of the illegally acquired evidence in the juridical decision; and the degree of infringement and the severity of its antisocial facets. Furthermore, the admissibility of the improperly gained evidences should entail the combined evaluation which includes the substantial grasp of truth, the legal protection of the personal rights, and the prevention of recurrence of similarities.
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도시경관 향상을 위한 옥외광고물 관리체계 방안 연구 -신도시 옥외광고물 등의 특정구역 지정을 중심으로-
정규상 한국디자인문화학회 2020 한국디자인문화학회지 Vol.26 No.2
Outdoor advertisements are elements that make up the city. Every local government manages outdoor advertising by preparing the system, regulations, and guidelines for the creation of a decent urban landscape. However, in reality, outdoor advertisements are private spaces, and adherence to guidelines is poor due to a lack of understanding by shop owners, so despite administrative sanctions and local government crackdowns, there are still many outdoor advertisements. To solve this problem, this study identifies the limitations of outdoor advertisement management and sets out ways to manage them efficiently. First, measures to introduce a Total Around Check System is devised, based on business agreements with local real estate agents and outdoor advertising associations. Through this, it is suggested that the quality of outdoor advertisements can be improved by preventing the installation of illegal advertisements in advance through design review. In addition, to easily understand outdoor advertisements and install them correctly, a three-dimensional design installation plan is proposed for when preparing an outdoor advertisement, as well as a mandatory submission of a signage plan to ensure that sign designs are in harmony with the period of the building’s architecture. A way to improve competitiveness is also suggested. 옥외광고물은 도시를 이루는 요소로서 품격 있는도시경관 형성을 위해 각 지자체에서는 제도 및 규제, 다양한 지침을 마련하여 옥외광고물에 대한 관리를수행하고 있다. 그러나 현실에서의 옥외광고물은 사적영역으로 상점주의 옥외광고물에 대한 이해도 부족으로 가이드라인의 활용도가 떨어지며, 각 지자체의 행정적 제재 및 단속에도 무분별한 옥외광고물이 난립하고 있는 실정이다. 이를 해결하기 위해 본 연구에서는 옥외광고물 관리현황의 한계점을 알아보고 효율적인 관리를 위한 방안을 모색하였다. 우선, 지역의 부동산 중개협회 및 옥외광고협회와의 업무 협약을 바탕으로 총괄 디자인 경유제 체계를 도입하기 위한 방안을 강구하였다. 이를 통해 상점 준비 단계부터 옥외광고물에 대한 이해를 돕도록 하고 디자인 검토를 통해 불법광고물 설치를 사전에 예비하여 품격 있는 옥외광고물을 설치할 수 있도록 제언하였다. 또한 옥외광고물을 쉽게 이해하고 현장에 올바르게 적용할 수있도록 옥외광고물 디자인 가이드 마련시 입체적 디자인 설치 안을 제안하고 간판표시계획서 제출을 의무화하여 건물이 지어질 때부터 간판과 조화로운 디자인을 하도록 하여 도시 경쟁력 향상을 위한 방안을제시하였다.
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