피승계인이 잔존하는 권리승계형 승계참가의 구조와 합일확정의 필요성 = Necessity of Unificative resolution with the Structure of Intervention by an Assignee of a Right in Which the Assignor remains

다국어 초록 (Multilingual Abstract)

In the case of intervention by an assignee of a right, Article 67 applies because if the assignor contests the fact of succession, there will be a three-sided conflict, and both parties will participate in the intervention, which is the same as in the case of independent party participation. However, if the assignor does not withdraw or partially assigns, or if the other party does not agree to withdraw and the assignor remains, the judgment of the claim for the overlapping succession parts cannot be made differently. Therefore, Article 67 of the Code of Civil Procedure must be applied mutatis mutandis. In such a case, it is reasonable to conclude that the Supreme Court's 2012 C 46170 ruling recently determined that Article 67 should apply mutatis mutandis to the form of joint litigation between the assignor and the assignee. However, it is a leap forward in interpretation and little ground to apply the provisions of the law of one-sided intervention of independent party and preliminary selective co-litigation as they are, as they are, to the successive intervention of rights, as they are the general legal basis for joint litigation concerning claims that cannot be legally compatible with each of these provisions are the same as those of one-sided intervention of independent party and preliminary selective co-litigation.
A intervention by an assignee of a right cannot be identified as an one-sided intervention of independent party or a preliminary/selective co-litigation because of its different nature, structure and effectiveness. Therefore, Article 67 shall only apply mutatis mutandis for the purpose of unifying and determining the identity of a claim for an overlapping claims of overlapping succession parts. As a result of the application of Article 67, the assignor or assignee who did not appeal may also file an incidental appeal in the second instance, and the principle of prohibiting adverse changes will not be applied in the judgment of the second instance. However, careful judgment must be made as to whether the legal representative of the assignor concurrently serves as the legal representative of the assignee.