後發的ㆍ豫備的ㆍ選擇的 共同訴訟에 관한 검토

Article 70 (Preliminary or Selective Co-Litigation) of the Korean Civil Procedure Act was revised in 2002. The Purpose of legislation for the Article 70 is that the legally incompatible litigations of the parties should be solved consistently in one action. The Preliminary Co-Litigation means that the legally incompatible claims by or against the prime party and the preliminary party are tried together and to be solved consistently in one action. If the judgement is in the prime party’s favor, the judgement to the preliminary party should be unfavorable, and adversely. The Selective Co-Litigation is that the legally incompatible claims by or against the parties will be judged selectively in a different way of the Preliminary Co-Litigation. If the judgement is given for one claim, the other claim should not win a lawsuit. * Professor, College of Law, Cheongju University.To be solved consistently in one action, Article 70 requires the application of Article 67 (Special Provisions for Indispensable Co-Litigation) mutatis mutandis to its trial. Therefore, procedural action taken by anyone of the co-litigants shall be effective only for the benefits of all such co-litigants, while the procedural actions taken by the counter party against one of the co-litigants shall be effective against all of them. In cases where there exists any cause for interruption or suspension of litigation procedures to one of the co-litigants, such interruption or suspension shall be effective against all co-litigants. But it does not apply to the case of waiver or recognition of the claim, compromise between the parties, and the withdrawal of the lawsuit. The reason why each co-litigants of Article 70 can close his or her lawsuit individually is that the claims of Preliminary or Selective Co-Litigation have not to be got together legally in one action or the judgements for the parties are not supposed to be legally effective on each other. Article 70 claims are legally incompatible to one another, but the ones of the Article 67 are legally compatible. On the basis of the difference between the two co-litigations, we should have an interpretation to the meaning of the application for the Article 67. The Admission of one of the co-litigants before the judge in a trial is particularly to be handled with differently in two co-litigations. The Admission of one of the co-litigants is generally not effective to the other co-parties in an action of the Article 67 and will accordingly be void as a whole. It is due to adverse to the co-litigants. On the other hand, in an action of the Article 70 the admission of one party can have an effect on the other co-parties who are able to get an advantage in their trial itself. Also the Article 70 provides to apply the Article 68(Addition of Indispensable Co-Litigants) mutatis mutandis. A plaintiff is able to add any persons to his or her trial court who are not parties yet, and make them to be preliminary parties or selective parties on his or her side or on the other side. According to the process of the action, a plaintiff can resolve the litigations connected legally with the already parties and the third to have brought in one action. The procedural materials from the already parties to the court can be used to decide on the claim by or against the new party to be added, if he invokes these materials to be favorable for him. Otherwise the court should take the processes of the action from day one on the claim of the new party. After adding the new party, the Article 67 shall apply. Parties may assign their claims or obligations during the action(Article 81, 82). When a third person has succeeded to the whole or part of the right or obligation which is the object of lawsuit, while the lawsuit is pending before the court, the plaintiff is able to bring in him or her to be a preliminary or selective party. The successor can also intervene to be a preliminary or selective party on his own name. After adding the successor, he should take over as of the lawsuit and is not allowed to deny any disadvantage lawsuit to be already made by his own predecessor. The Article 67 shall also apply in this suit. Without the assignment, any third person who claims that the whole or part of the object of lawsuit is his own right may intervene in the lawsuit as a party by making either side of the parties the other party(Article 79). In this case, the trial judge can make use of the procedural materials from the already parties to decide the claim by new party, although he does not invoke that materials for himself. The Article 67 shall also apply. In conclusion, the co-litigations of the Article 67 in the Korean Civil Procedure Act are supposed to be used the legally incompatible litigations between the parties in various ways through the Article 79, 81, 82.