재판상화해의 기판력에 관한 연구

Civil action, as the last resort of a civil dispute resolution, is often accompanied by the problems such as delay of lawsuit and expensive litigation fees. As well, an absolute final decision sometimes fails to protect the parties’ substantive right. For these reasons, alternative resolutions to a final decision have been broadly adopted. This assay is based on the issue that whether a consent judgment, one of the alternative resolutions, should be granted Res judicata. Originally, Res judicata is an effect of the decision in civil procedure, for which the parties argued and defended before a judge and the judge declared it after an actual trial. In this view, Res judicata should not be granted to a reconciliation or mediation. But actually, both statute and precedents equipped the consent judgment and civil mediation with Res judicata. However, it is difficult to equal the Res judicata of a final decision, which is entered after a performance of strict civil procedure, to that of a consent judgment. For different with a final decision, the consent judgment is achieved according to the parties’ self-determination, where cheat and compulsion inevitably exists. Even then, because of the effect of Res judicata, a party can not claim the judgment to be invalid or repealed. To deal with this problem, while keeping the principle that a consent judgment has Res judicata by providing it explicitly in statute, it is desirable to establish a provision that when the consent judgment is reasonably to be declared invalid or repealed, a consent judgment will lose the effect of Res judicata, then the previous trial will continue or an analogous trial be initiated. If this institutional resolution fails to be applied, we have to deal with it by legal interpretation, which is to expand the range of analogous retrial by amplified interpretation and to construe the reasons of invalidity and repeal as grounds for analogous retrial or as violation of social law and order, then reject the Res judicata.