기업소송, 자본비용 및 기업특성

박종일 ( Jong Il Park ),신재용 ( Jae Yong Shin ) 한국회계학회 2014 회계학연구 Vol.39 No.4

This paper investigates the market`s response to the occurrence of the actual corporate lawsuits in terms of the effect on the cost of capital. Lawsuits increase the investor uncertainty in estimating future cash flow, leading to higher information risk. Therefore, firms facing lawsuits would have a higher cost of capital to compensate investors for the additional information risk. Furthermore, if the auditor deems the lawsuit significant and reports it in the audit report as a part of footnotes, then it implies that auditors judge the effect of lawsuit, if firms lose in the lawsuits, is significant for the firm and auditors believe that the chance of the firms losing in the lawsuit is reasonably high. As a result, investor use the information contained in the audit report in their decision-making. Thus, the uncertainty of future cash flows will be even higher for such firms, further increasing information risk and thus the cost of capital. Also, our analysis employs logistic regression analysis to examine which firm characteristics tend to be more associated with the occurrence of corporate lawsuits. We use credit risk, the magnitude of discretionary accruals and real earnings management, auditor characteristics, industry characteristics, and others as the firm characteristics which potentially influence the occurrence of corporate lawsuits. We manually collect footnotes and lawsuit data from audit reports. The audit reports of Korean firms are disclosed in Data Analysis, Retrieval and Transfer System (DART) website which is provided by Korean Financial Supervisory Service. The cost of capital was based on the Weighted Average Cost of Capital retrieved from the KISVALUE LIBRARY database of NICE Investors Services, an expert in firm analysis. Our sample consists of companies listed in the Korea Stock Exchange from 2003 to 2007. We restrict our sample for firms whose fiscal year ends in December to maintain consistency. Furthermore, we exclude financial firms in our sample which are significantly different from other types of firms. Finally, we use a total of 2,302 firm-year observations, of which 891 firm-year observations faced lawsuits, and 157 firm-year observations had the respective lawsuits mentioned in the qualified audit report. The results of our empirical analyses are summarized as follows. First, we find that firms facing lawsuits have a significantly higher cost of capital than firms without lawsuits, even after controlling for the factors which could affect cost of capital. As expected, firms also have higher cost of capital when the auditor noted the lawsuit in the qualified audit report. Cost of capital is also positively associated with the number of lawsuits and the amount of claim for lawsuits, which are recorded in the audit report. These results imply that if a corporate lawsuit is significant enough to be mentioned in the qualified audit opinion, it implies that there is higher information risk due to the increasedinvestor uncertainty of future cash flows. In conclusion, corporate lawsuits induce a higher cost of capital to induce the additional risk premium. Second, firms with lower corporate credit ratings have a significantly higher possibility of facing lawsuits. Firms with lower return on assets, lower systematic risk, lower stock return volatility, smaller percentage of major shareholder or foreign investors` ownership, higher market to book ratio, and higher debt ratio have a significantly higher possibility of facing corporate lawsuits. Furthermore, more frequent losses in the past 3 years lead to the increased probability of facing corporate lawsuits. Also, corporate lawsuits are more common in the construction industry and the wholesale industry than any other industry. Unlike the findings in prior studies in the U.S., corporate lawsuits in Korean firms display no significant association with the magnitude of earnings management (measured by the degree of discretionary accruals and that of real earnings management) or auditor characteristics (Big 4 auditor indicator variable). The findings in the U.S. studies indicate that firms with aggressive earnings management and firms with big 4 auditor suffer more litigation risk. However, we argue that the most important reason why a Korean firm becomes defendants of lawsuits is related to the drop in the company`s profitability or the problems in financial stability of the company, rather than earnings management by firm or potential big pockets of auditor. The main contributions of this study are summarized as follows. First, this paper extends prior literature by examining actual firms facing lawsuits instead of potential litigation risk proxies, and by looking into the market response to these lawsuits in terms of the effect on the cost of capital. Second, we find that the specific contents in audit reports such as the corporate lawsuits play an important role in the formation of firm value. In other words, investors consider the important information contained in the footnotes of audit reports when they estimate the cost of capital. Third, our results reveal the association between firm characteristics and corporate lawsuits. Hence, we add to the existing literature on corporate lawsuits. Combined together, our study sheds light on the growing number of lawsuits filed against Korean firms. These findings could be interesting and provide valuable implications to practitioners, regulators, and academics.

갑오개혁기 형사소송구조에 관한 연구

박성민(Park, Sung-Min) 한국형사법학회 2012 형사법연구 Vol.24 No.1

The criminal lawsuit structure in late Chosun Dynasty before KABO reform did not enable speedy trial, as judicature and administration functions were not separated, and the process was dependent on 'Courtesy' that is the governing principle of Confucianism. Also, as the trial structure mandatorily required confession, trial process and criminal administration process were not separated, and torture and defendant replacement by servants was widely prevalent as problematic. The purpose of this study is to review how these structural problems in lawsuit was handled in KABO reform at late Chosun Dynasty. Especially it would be meaningful to reveal how the traditional inquisitorial lawsuit structure was migrated to accusatorial system in this period. This study reviews the lawsuit structure by differentiating between before and after Court Organization Act with regard to criminal lawsuit structure. Therefore, this study compares criminal lawsuit structure during the period between June 1894 (lunar year) and March 1895, against another structure that came in after Court Organization Act promulgated as Law No.1 by the coalition cabinet by KIM Hong Jip and PARK Young Hyo, based on the agenda presented by National Intelligence Office. First of all, the lawsuit structure before Court Organization Act reveals that unification of jurisdiction function that was dispersed between administrative institutions was emphasized, rather than the concept of separation between administration and judicature. However, being basically bound within the inquisitorial lawsuit structure, unification of jurisdiction itself looks as a failure. Thereafter, establishment of law school for improved quality of judge did not come true. Prohibition on torture and limitation on defendant replacement by servants were nothing more than declaratory slogan, within the unchanged situation of requiring confession as mandatory. Especially without overcoming mandatory confession lawsuit structure, trial process and criminal administration process could not be separated This situation continued until November 1906, when Criminal Enforcement Law draft was enacted, stipulating 'trial by evidence doctrine' and 'free belief doctrine' After Court Organization Act, civil and criminal lawsuit was differentiated by Civil & Criminal Lawsuit Regulation. However, by victim's submission of private indictment together with public indictment, parallel structure between civil procedure and criminal procedure was operational. This was rather different from modern civil and criminal lawsuit process. Henceforth this study shows that the victim in criminal procedure had some burden of proof. What is remarkable is that after Court Organization Act, lawsuit structure escaped traditional inquisitorial lawsuit structure and switched to accusatorial system dramatically. At this period, even though prosecutor had status as preliminary judge, accusatorial system can be partially identifiable from the viewpoint of prosecutors' authority to file indictment, independency from judges and human right-protective status. At this period, unification of jurisdiction that was unsuccessful beforehand seems to be achieved by establishment of court. With regard to trial process, modern hearing process seems to become in place. However, it is regrettable that establishment of court was not going well, hence disobedience of regional trial was handled by High Court rather than Circuit Court. Furthermore, as regional courts were delayed in establishment, existing regional legal officer had concurrent position of judge and prosecutor, existing problems remained intact in case of regional lawsuit.

회사관계소송과 자백 -주주총회 결의무효확인소송의 법적 성질과 대세효를 근거로-

이정환 ( Jeong Hawn Lee ) 연세대학교 법학연구원 2011 법학연구 Vol.21 No.2

As filing identity and filing period are legally fixed for the lawsuit to cancel company establishment and the lawsuit to cancel resolution made in shareholders meeting and the judgement to quote it has effect of general situation, it is a common view to understand it as forming lawsuit. Additionally, lawsuits to invalidate merge and establishment are also interpreted in the same manner. On the other hand, though the clause 380 of the commercial law is applied to clause 190 for the expansion of judgement`s effect in a lawsuit to confirm the invalidation of resolution invalidated, there is no legal regulations for the method to claim, filing identity and filing period. However, in case of claiming the invalidation of resolution through a lawsuit, the general effect of special lawsuit procedures and verdict in favor are recognized as the company lawsuit based on the commercial law in the procedure of civil suit to fix regal relation uniformly. Though the company related lawsuit is not the procedure of lawsuit based on the theory to detect authority, the reason that validity of verdict has effect of general situation influencing the third party is to settle down legal relation with companies uniformly and prevent the repetition of lawsuit. In the company related lawsuit, the topic of this paper, the problem of applying confession legally needs to be discusses in relation with effect of general situation. Because it is recognized when public interest with highly probable truth is judged to exist, and effect of general situation is mentioned as a background of theories to detect authority in relation with the fact on which principles are adopted for collecting lawsuit data. However, as a verdict to cancel resolution, the cancellation of unreasonable resolution, a verdict to confirm change are forming judgements, the range of Res iudicata power generally influences the third party based on its attributes, but opinions are opposite each other for the fact on whether a verdict to confirm the invalidation of resolution and a verdict to confirm the nonexistence of resolution are forming lawsuit or confirming lawsuit. As effect of general situation is brought about in forming lawsuit and rarely has relation with confirming lawsuit, it is indispensible to review it. Accordingly, this paper focuses on reviewing the lawsuit to confirm the invalidation of resolution in shareholders meeting among company related lawsuits, and excludes other company related lawsuits. In other words, this paper grapes the legal characteristic of lawsuit to confirm the invalidation of resolution and reviews the general effect for it, additionally, derives the fact on whether confession is accepted in the company related lawsuit based on it.

소송고지와 참가적 효력

나현 ( Hyun Na ) 이화여자대학교 법학연구소 2021 법학논집 Vol.26 No.2

75) The Civil Procedure Act of the Republic of Korea has, in succession to German law, a system of Notice of Lawsuit (§84). And it further stipulates that a judgment shall also take effect to a person who had received a Notice of Lawsuit but who failed to intervene in the lawsuit (§86, §77). The Supreme Court and scholars explain this effect of the judgement as the Effect of Participation (Interventionswirkung), as in the case of German law. The Effect of Participation means the legal binding force that a future court may not find facts conflicting with the finding of facts established by the preceding lawsuit judgment, where a person who has given a Notice of Lawsuit and another person who has received the Notice of Lawsuit are parties to such future lawsuit. Therefore, from the standpoint of a person who has received a Notice of Lawsuit, this effect means a limitation on the Right of Access to Courts under the constitution in the sense that his/her right to a fair trial may be restricted in so far as he/she cannot insist on the facts that he/she believes to be right. Starting from understanding the meaning as above, among other things I stressed that imposing such restriction on a person who has received a Notice of Lawsuit can be justifiable in light of the constitutional standards, when [① Sufficient and necessary information should be provided to a person who has received a Notice of Lawsuit for his/her making a decision on whether he/she will participate in the lawsuit, ②The court that has received an application for a Notice of Lawsuit should examine whether the Notice of Lawsuit is lawful based on the above criteria, ③A person who has received a Notice of Lawsuit without sufficient information should be able to assert such unlawfulness in a future lawsuit]. In addition, in view of the interpretation of the Civil Procedure Act and the constitutional interpretation criteria for the act on the restriction of Fundamental Human Rights, I would like to stress that the Effect of Participation from a Notice of Lawsuit should be limited to cases where a Notice of Lawsuit is given to a person whose status can be a supplementary intervention and should not be extended to cases where a Notice of Lawsuit is given to a person whose status can be an intervention as independent party under the Civil Procedure Act.

필수적 공동소송과 소의 취하

김동현 충북대학교 법학연구소 2025 법학연구 Vol.36 No.2

In principle, the withdrawal of a lawsuit is free (Article 266 of the Civil Procedure Act). However, in the case of co-litigation involving multiple parties, the question arises as to who can withdraw the lawsuit and whether the withdrawal of a single co-plaintiff is effective. There is no dispute in the interpretation that in the case of ordinary co-litigation, a single co-plaintiff can validly withdraw his or her lawsuit pursuant to Article 66 of the Civil Procedure Act (the principle of independence of co-plaintiffs) and in the case of preliminary co-litigation, pursuant to the proviso to Article 70, Paragraph 1 of the same Act. The general theory and precedents state that in an indispensable co-litigation for substantive reasons, one co-plaintiff cannot withdraw the lawsuit, but in an indispensable co-litigation for procedural reasons, one co-plaintiff can withdraw the lawsuit. However, regarding this issue, there may be room for interpretation disputes, especially regarding whether withdrawal of a lawsuit is a disadvantageous litigation act (Article 67, Paragraph 1 of the Civil Procedure Act) or a litigation act related to the demand of uniformly established legal relationship at issue, and whether it is appropriate to restrict the plaintiff's freedom to withdraw a lawsuit, which is recognized under the principle of dispositional rights, for the benefit of other joint plaintiffs who wish to resolve the dispute through litigation. The purpose of this article is to comprehensively address issues related to indispensable co-litigation and withdrawal of a lawsuit. Specifically, it criticizes the prevailing theory and precedent that do not permit the withdrawal of a single co-plaintiff in indispensable co-litigation for substantive reasons, and argues for the appropriateness of allowing such withdrawal. Meanwhile, the withdrawal of a lawsuit by one co-plaintiff or by one co-defendant in co-litigation corresponds to the partial withdrawal of the lawsuit. Therefore, this issue also involves the debate on whether partial withdrawal of a lawsuit is permissible in an indispensable co-litigation. Furthermore, the prevailing view is that since partial withdrawal of a lawsuit is permitted in an indispensable co-litigation for procedural reasons, a presumed partial withdrawal of a lawsuit due to the absence of both parties is also permissible. Therefore, even if one co-plaintiff appears at the hearing to argue, Article 67, Paragraph 1 of the Civil Procedure Act is excluded, and the provision on presumed withdrawal of a lawsuit (Article 268 of the Civil Procedure Act) applies to the absent co-plaintiff. This article critically examines the prevailing view on this issue and presents the author's own opposing view.

訴訟係屬論 一顧

강구욱 한국민사소송법학회 2024 민사소송 Vol.28 No.2

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.

국제적 소송경합에 있어서 소송의 동일성과 소송상 취급

최성식 인문사회 21 2022 인문사회 21 Vol.13 No.2

The Identity of the Lawsuit and Handling in Lawsuitin International Lis PendensSungsik Choi Abstract: The purpose of this study is to determine by what standard the issue of identity of lawsuit in international lis pendens and discuss how to deal with lawsuit in which identity is recognized. The research method is to examine the contents of international norms, theories, and revised Private International Law. The contents of this study is to examine the meaning of international lis pendens, matter of a lawsuit, lis pendens, and suspension of lawsuit procedures. The research results are as follows. Although Private International Law has been recently revised and many of the issues that have arisen in international lis pendens have been legislatively resolved, the standard for judging the identity of a lawsuit is still left up to theories and precedents. In this paper, it is suggested that the discussion on the sameness of lawsuit should be judged according to independent standards, rather than being resolved with the concept of matter of a lawsuit. In conclusion, although international lis pendens has characteristics in common with lis pendens under domestic law, it has different aspects, so an independent value judgment is required. Key Words: International Lis Pendens, Matter of a Lawsuit, The Identity of the Lawsuit, Lis Pendens, Suspending of Lawsuit Procedures 국제적 소송경합에 있어서 소송의 동일성과 소송상 취급최 성 식* 요약: 본 연구의 목적은 국제적 소송경합에 있어서 소송의 동일성 문제를 어떠한 기준으로 확정하고, 동일성이 인정된 소송에 대하여 소송상 취급을 어떻게 할 것인지를 논의하는 것이다. 연구방법은 국제규범, 학설, 개정 국제사법의 내용을 살펴보고, 연구내용은 국제적 소송경합의 의미, 소송물, 중복제소, 소송절차의 중지에 대하여 고찰하였다. 연구결과는 다음과 같다. 최근 국제사법이 개정되어 그동안 국제적 소송경합에서 발생하는 쟁점들이 상당부분 입법적으로 해결되었으나, 소송의 동일성 판단기준은 여전히 학설과 판례에 맡겨져 있다. 이 논문에서는 소송의 동일성 논의에 대하여 소송물 개념으로 해결할 것이 아니라 독자적 기준에 따라 판단되어야 한다고 제언하였다. 결론적으로 국제적 소송경합은 국내법상 중복제소와 공통적 성질이 있으나, 그와 다른 측면이 있으므로 독자적 가치판단이 필요하다. 핵심어: 국제적 소송경합, 소송물, 소송의 동일성, 소송계속, 소송절차의 중지 □ 접수일: 2022년 2월 15일, 수정일: 2022년 3월 10일, 게재확정일: 2022년 4월 20일* 호남대학교 법학과 교수(Professor, Honam Univ., Email: 2009003@honam.ac.kr)

소비자단체소송제도의 문제점과 개선방안

김상찬 한국민사소송법학회 2013 민사소송 Vol.17 No.2

Korea’s consumer group lawsuit system has been in force since January 1, 2008 from the time it was first introduced with birth of the Framework Act on Consumers on September 27, 2006. Consumer group lawsuit system is the one that enables a group established for a specific public objective to request for prohibition against business operators as a form of lawsuit for the public interests such as consumer protection. consumer group lawsuit system is considered a representative system showing conversion of paradigm of consumer policy from consumer protection into establishment of consumer sovereignty. However, the number of lawsuits that were actually filed from its enforcement to this day is only 1 case, which shows that the system is almost nominal. Considering aforementioned circumstances, this study is inquiring into the problem of consumer group lawsuit system and seeking for improvement measures. As improvement measures for consumer group’s lawsuit, this study suggests First, requisites for lawsuit shall be materialized and requirements for invasion of consumers‘ rights and interests shall be deleted or eased. Second, association of business operators shall be excepted from groups eligible for standing to sue. Third, instead of designating the territorial jurisdiction of the first instance of consumer group’s lawsuit as exclusive jurisdiction of a district court having competence over operator’s general jurisdiction, jurisdiction of a district court that have jurisdiction over the place where illegal act occurred shall also be acknowledged. Fourth, one-sided Principle of Mandatory Representation by Attorney against consumer group shall be expurgated. Fifth, consumer group’s lawsuit permission system shall be abolished. Sixth, the force of irrevocable judgment shall be reexamined and judgement publication system as well as regulations shall be prepared for taking disciplinary measures against a business operator protesting against a judgment and securing effectiveness of judgment. Seventh, this study also suggests that the government should support expenses of lawsuit when a consumer group files a group lawsuit. Along with the above, this study is pointing out that collective consumer dispute mediation system of Korea Consumer Agency shall remain activated by the time consumer group lawsuit system is legislatively improved and revitalized.

ICJ관할권 체제하에서 조건부 소송의 가능성 여부에 관한 연구

문규석 영남대학교 독도연구소 2016 독도연구 Vol.- No.21

독도는 역사적으로, 권원적으로 그리고 국제법적으로 한국의 고유한 영토이다. 불행하게도 일본은 이와 같은 사실을 받아들이지 않고 있고, 또 자국의 고유한 영토라고 집요하게 주장하고 있다. 따라서 1952년 1월 18일에 ‘대한민국 인접 해양의 주권에 대한 대통령 선언’(평화선) 이후로 일본은 여전히 반발하고 있다. 독도의 영유권 문제와 관련하여 분명한 사실은 네 가지이다. 첫째, 일본은 한국에 대하여 식민지 지배과정 중에서 1905년에 독도를 자국의 영토로 편입하였고, 제2차 세계대전이 종결된 이후에 한국은 독도를 다시 회복하였다. 둘째, 1905년 이전에 발간된 일본의 여러 고문서에서도 독도는 한국의 영토로 인정하고 있다. 셋째, 청명한 날에 울릉도의 특정한 장소에서 독도를 눈으로 볼 수 있는 것과 같이 한국의 여러 고문서들은 독도가 한국의 고유한 영토라는 사실을 확인해 주고 있다. 넷째, 러․일 전쟁 전후(前後)의 제국주의 시대(식민지 개척이 합법화되던 시대)와 시제법상 을사늑약(일명 을사보호조약)이 합법적인 조약으로 인정될 시대에 일어난 일본의 편입조치에 대하여 ICJ가 시제법상 어떠한 내용으로 평가할 것인가는 명확하지 않다. 이 점이 한국의 입장에서 ICJ소송에서 가장 우려하는 부분으로 알고 있다. 이와 같은 사실이 있음에도 불구하고 일본은 집요하게 한국의 주권을 침해하는 발언을 함과 동시에 독도 영유권 문제를 국제사법법원의 재판을 통해서 해결하자고 주장하고 있다. 그렇다면, 한국은 일본의 주장에 어떻게 대응해야 하는가? 일본은 본질적으로 소송에서 패소한다고 하여도 잃을 것이 하나도 없다는 관점에서 집요하게 주장하고 있다. 또는 ICJ소송에서 패소한 경우에 자존심은 좀 상한다할지라도 밑져봐야 본전이라는 관점에서 전략적으로 ICJ소송을 통하여 해결하자고 주장한다. 반면에 한국은 한국의 고유한 영토를 영유하고 있는 관점에서 우려하는 상황이 있다. 즉 그 어떤 불가항력적 상황이 발생하여 안보리가 독도 영유권 문제를 ICJ소송을 통해서 해결하라는 결의를 행한 경우에 한국은 이 문제를 어떻게 대응하여야 하는가?필자는 이러한 상황에 대한 대처 방안을 깊이 생각하는 과정 중에서 (어쩌면 하나님의 은혜로) ICJ에서 조건부 소송이 가능하다는 생각이 갑자기 떠올랐다. 그 이유는 ICJ의 관할권 체제는 당사자 합의 관할권 체제로 운영되고 있기 때문이다. 따라서 본 연구의 핵심 사항은 ICJ에서 조건부 소송 그 자체가 가능한지 여부이다. 여기에서 조건부 소송은 소송이 성립하기 위한 전제조건으로써 피고국이 당해 소송에서 승소한다면, 특정한 조건의 이행을 원고국에게 제안하고, 원고국은 패소하게 된다면, 그 특정한 조건을 피고국에게 이행해 준다는 조약을 체결한 이후에 개시되는 소송을 뜻한다. 그렇다면, 조건부 소송 그 자체는 이론적으로 ICJ에서 가능한가?조건부 소송이 가능하다는 근거는 다음과 같다. 첫째, ICJ소송제도는 당사자 합의 관할 체제(선택적 관할권 체제, 임의적 관할권 체제)이기 때문이다(ICJ규정 제36조 2항). 둘째, 조건부 소송의 성립에 대하여 양 당사국이 동의한다면, 그 동의로 인하여 소송이 성립될 수 있기 때문이다. 즉 조약법에 관한 비엔나협약 제26조에 따라서 양당사국이 조건부 소송의 성립에 대하여 동의한다면, 그 동의로 인하여 조건부 소송은 성립될 수 있다. 셋째, 조건의 유무를 떠나서, ICJ는 당사국 ... Dokdo Island is the inherent territory of Korea from the standpoint of history, title of law, and international law. Unfortunately Japan does not accept this true fact. On the contrary she has contended persistently that Dokdo Island has been the territory of Japan after incorporating it with the territory of Japan in course of colonization in 1905, and has complained continuously since ‘Declaration of Sovereignty Over Neighboring Seas’ proclaimed by Korea in 18 January 1952. In connected with the dominion of the Dokdo Island, there are four obvious facts at least. First is that Dokdo Island had been incorporated in the territory of Japan in the course of colonization with the purpose of military usage before the period of the Russia-Japanese war in imperialism times, and Korea had returned to the original condition after Japan had defeated the Second World War. Second is that some various old documents which published in Japan before 1905 had recognized again and again that Dokdo Island belongs to Korea. Third is that just like people can see Dokdo Island on the specific place in Ulleung Island with the naked eyes during the bright day, many old documents which published in Korea before the year of 1905 had been clearly recorded that Dockdo Island belongs to Korea and has been controlled by Korea. Fourth is that Japan's incorporation on Dokdo Island had taken the times which a powerful state could colonialize a small state lawfully from the standpoint of comtemporary international law. Korea has concerned about this fourth point very much in the ICJ lawsuit, as far as I know, if the issue of Dokdo Island can be brought. Nevertheless the facts, abovementioned, are true without doubts, Japan has contended persistently that the best way to solve the issue of Dokdo Island brings a lawsuit at the International Court of Justice(ICJ). If so, how does Korea cope with the contention of Japan? Most of third people, who do not belong to Korea and Japan, can think that bringing a lawsuit to ICJ suggested by Japan is the best way to solve the Dokdo Island issue because they do not know the historical relations between Korea and Japan. There is also a big reason for the Japan's contention to solve the Dokdo Island issue through ICJ lawsuit at least. The reason is that Japan is none the worse for the loss if Japan loses a lawsuit against Korea. Or Japan can think that it is OK or does not mind if Japan loses a lawsuit against Korea even though Japan will be hurt her pride. On the contrary there are not any reasons for Korea to be approved by the ICJ because Dokdo Island belongs to the Korea's inherent territory without any doubts from the standpoint of history and international law. It is not fair as well that Korea will be unilaterally burdened an unimaginable shock such as explosion of an atomic bomb if Korea loses a lawsuit due to unskilled litigation capacity or any other reasons. By the way, how does Korea cope with this worst situation if UN Security Council makes a recommendation or decides a resolution with a means of settling the Dokdo Island issue under chapter 7 of UN Charter even though it is not much possibility to happen this situation in reality? In preparing the inevitable situation caused by the pressure of international community such as resolutions or recommendations by the Security Council of UN, the author got an idea about the conditional lawsuit in the framework of the ICJ jurisdiction under the grace of God Almighty suddenly. Here is the conditional lawsuit that means to start the lawsuit after the complainant state accept a specific condition that the defendant state proposes, if the defendant state will win the case against the complainant state, as an precondition for making a lawsuit. Namely it means a special lawsuit that should implement the specific condition attached for making the lawsuit if the complainant state loses the case against the defendant state. If so, is it possible to bring a conditiona...

추심의 소와 채무자의 당사자적격, 중복된 소제기의 금지

양진수 민사판례연구회 2015 民事判例硏究 Vol.- No.37

A creditor who obtains an order of garnishment can file a debt collection lawsuit against a garnishee. Some scholars regard this kind of lawsuit as an exercise of a creditor's intrinsic right, but it should be classified as a litigant with statutory standing, because a collection right is not a substantive right, and a creditor who obtains garnishment acquires both the authority and right to collect debts on behalf of a debtor. Some scholars say that even when a creditor obtains an order of garnishment, a debtor retains a standing to file a lawsuit against a garnishee based upon the seized claim. However, in my opinion, a debtor shall lose the legal standing or litigation right as long as the garnishment is valid for the following three reasons. First, the Civil Execution Act allows a creditor to select a garnishment as a way of compulsory execution and thereby allowing both the collection authority and litigation right against a garnishee, with the aim of fulfilling a creditor's own right to debts. Second, the loss of a debtor's standing is not against judicial economy nor put the garnishee at disadvantage. Third, a debtor already has another private law remedies, and he/she should bear that his/her position becomes slightly inferior by complying with the execution. When a creditor prosecutes an action against a garnishee and obtains a valid final judgment, a debtor is no longer able to initiate another action against the garnishee based upon the same claim, due to res judicata, regardless of a creditor's winning (or losing) the lawsuit or a debtor's recognition of the lawsuit. This is because Article 218 (3) of the Civil Procedure Act stipulates that a final and conclusive judgment rendered to the person, who became a plaintiff or defendant for another person, shall be binding on the said another person also. And when a debtor suffers a damage because a creditor violates a duty of notice of an action, the conflict should be settled between the creditor and the debtor, without making a garnishee who has not contributed to the arise of a collection right to contest a lawsuit more than once. Furthermore, after a debtor initiates a lawsuit against a garnishee and obtains a valid final judgment, a garnishee can use res judicata as a defense against a creditor filing another action against him/her based on the same claim. This is due to the fact that a creditor who acquires a garnishment after a conclusion of an oral proceeding of the debtor's lawsuit constitutes the “successor” to the status of legal standing or the subject of the litigation. According to legal theories and precedents, in cases where one party can use res judicata as a defense against the other party, like a successor of the litigation after a conclusion of an oral proceeding, the parties can be treated as ‘the same parties’ which is a key requirement to apply a prohibition of duplicative litigation, although the parties of the former and later lawsuits in fact are not the same. If we hold this point of view, it is probable that a creditor who obtains a garnishment after a conclusion of an oral proceeding of the debtor's lawsuit be regarded as ‘the same party’ in a prohibition of duplicative litigation. However, I insist that the debt collection lawsuit initiated by a creditor after a pendency of a debtor's lawsuit should not be treated as a duplicative litigation referred to in Article 259 of the Civil Procedure Act for the following grounds. First, the Civil Execution Act provides for the institution of garnishment to be selected by a creditor as means of execution for the purpose of fulfilling a creditor's own right of claim. Second, allowing the creditor's debt collection lawsuit does not violate the purpose of the Civil Procedure Act for the prohibition of duplicative litigation to prevent waste of time and inconsistency and contradiction of judgment caused by double acceptance of lawsuit and repeated hearing. This judgment reconfirmed p... 채무자의 금전채권에 대하여 압류 및 추심명령이 있으면 채권자는 제3채무자를 상대로 압류된 채권의 이행을 청구하는 소를 제기할 수 있다. 이러한 추심의 소의 성질에 관하여 압류채권자가 자신의 고유한 권리를 행사하는 것이라고 보는 견해도 있으나, 우리 민사집행법 하에서는 추심권에 실체적 권리로서의 성격이 없고, 추심채권자는 추심권이라는 권능과 함께 타인인 채무자의 채권을 대신 추심해 준다는 자격도 함께 가지므로, 법정소송담당으로 보아야 한다. 추심명령이 있는 경우 피압류채권에 대한 채무자의 소송수행권 내지 당사자적격이 유지된다고 보는 견해도 있으나, 민사집행법이 채권자로 하여금 강제집행의 방법으로 추심명령을 선택하고 피압류채권에 대한 추심 권능과 함께 소송수행권을 갖도록 한 취지는 채권자의 권리(집행채권)의 실현을 위한 것으로 볼 수 있고, 채무자의 소송수행권이 상실된다고 보더라도 소송경제에 반하거나 제3채무자에게 불이익하게 된다고 볼 수 없으며, 채무자에게는 이미 일정한 구제수단이 마련되어 있을 뿐만 아니라 강제집행에 응하는 자로서 어느 정도 지위가 열악해지는 것은 감수하여야 하므로, 채무자는 소송수행권 내지 당사자적격을 상실한다고 봄이 타당하다. 법정소송담당에 관한 민사소송법 제218조 제3항은 권리의 귀속주체에게 판결의 효력이 미치는 데 제한을 두고 있지 않고, 채권자의 소송고지의무 위반으로 인한 채무자의 손해는 채권자와 채무자 사이에 해결하여야 할 문제이며, 추심권 발생에 기여한 바 없는 제3채무자에게 이중응소의 부담을 지우는 것은 부당하므로, 추심소송의 판결의 효력은 그 승·패소 또는 채무자의 지·부지를 불문하고 언제나 채무자에게 미친다고 보아야 한다. 또한, 채무자가 먼저 소를 제기하였을 경우 추심명령을 얻은 채권자는 당해 채권에 관하여 당사자적격 또는 분쟁주체인 지위를 이전받은 자로서 ‘승계인’에 해당하므로, 채무자가 수행한 소송의 확정판결의 기판력은 그 소송의 변론종결 후(무변론판결의 경우 판결선고 후) 추심명령을 얻은 채권자에게 미친다고 보아야 한다. 전소와 후소의 당사자가 동일하지 않더라도 후소의 당사자가 기판력의 확장으로 전소의 판결의 효력을 받게 될 경우에는 동일 사건으로 중복된 소제기의 금지 원칙이 적용된다는 학설과 기존 판례에 따른다면, 채무자의 소가 후소인 경우 추심채권자의 전소 확정판결의 기판력이 미치고, 채권자의 추심의 소가 후소인 경우 채무자의 전소 확정판결의 기판력이 미치므로, 두 경우 모두 중복된 소제기의 금지 원칙의 적용 요건으로서의 ‘당사자의 동일’에 해당하게 된다. 그러나 민사집행법이 추심명령 제도를 둔 근본 취지는 채권자의 권리(집행채권) 실현을 위한 것이고, 후소인 추심의 소를 허용하여도 중복된 소제기를 금지하는 민사소송법의 취지에 반하여 이중응소와 중복 심리로 인한 소송불경제 및 판결의 모순·저촉을 야기하지 않으므로, 채권자의 추심의 소가 후소인 경우에는 채무자의 전소와의 관계에서 민사소송법 제259조가 금지하는 중복된 소제기에 해당하지 않는다고 봄이 타당하다. 대상판결은 추심명령이 있는 경우 채무자가 피압류채권에 관한 당사자적격을 상실한다는 종전의 입장을 재확인하였고, 다수의견은 이를 토대로 채무자의 소가 비록 추심의 소보다 먼저 제기되었다 하더라도 그러 ...