소송물의 실질적 동일성과 기판력의 작용이론 -판례분석과 試論을 중심으로-

Traditionally we have not adopted issue preclusion but only claim preclusion, then a judgment binds the parties and their successors in interest with respect to the subject matter of the claims actually asserted and decided. Also the range of cause of action is so narrowly admitted by courts that sometimes the same or similar case which is just different from already tried and decided case are repeatedly tried and decided by courts. However, now we could not take the issue preclusion concept because our judicial circumstances are not riped for recognizing it even though the issue preclusion would be necessary for reasonable distribution of judicial resources in the future. First of all, civil procedure reform which was begun since 2002 is not yet completed and fact finding procedure by first instance court is not fully embedded enough to take the issue preclusion theory. Furthermore, until now there are so many pro se litigation in Korea and we could not find reasons and issues for the decision in small claim litigation because judges have no duty to write reasons for small claim decisions. We could know just conclusions of small claim actions with their decisions. However, we have to develop new tools for recognizing broader range of res judicata because our judicial resources should be reasonably distributed and should prevent from contradictory results between former and later actions. Then we could offer a alternative transient solution for broader range of subject matter of the controversy harmonizing with the main stream of the late supreme court decisions. It is the function of res judicata. Res judicata effect would be given with respect to the same claim of former claim. But if the results of later action would be contradictory with the results of former action, the judgment in a later action should be given res judicata effect through a function of res judicata. The Korean Supreme Court have allowed this function of res judicata very narrowly. However, we should broaden this function of res judicata so as to cover the roundabout contradictory results of later action. Especially, the Supreme Court 2001. 9. 20. 99da37894 case intended to prevent later action from negating former action indirectly through experimental theory which says that identity of subject matter of the controversy should be decided on the basis of substantiality of it. However, this approach is not matched with main stream of the Supreme Court decisions about res judicata problems. Then we should focus on the new method which broadens the range of function of res judicata.