법관 제척이유로서의 ‘당사자’와 ‘공동권리자·공동의무자’

Civil Procedure Act article 41 subparagraph 1 says "When a judge, his spouse, or his former spouse becomes a party to the case, or is related to a party to the case as a co-creditor, co-debtor or a person liable for redemption, a judge shall be excluded from performing his duties." Supreme Court Decision 2009Da102254(decided on May 13, 2010) is the first case regarding 'co-creditor, co-debtor' in the above clause. The decision said "In the case in which some members of families of the same clan are claiming the confirmation of the nullity of the general meeting's resolution, if a judge in charge of the case is a member of the same clan, that judge is 'related to the party(the plaintiffs) as a co-creditor, co-debtor' in the provision."I consent wholly to the conclusion that the judge shall be excluded, but I cannot assent to the reasoning of the decision. My view is that, in that case the judge is not 'co-creditor, co-debtor' but 'party' itself. My argument is that if the plaintiffs win the case(it means that the nullity of the general meeting's resolution was confirmed by the judgment), that judgment will be effective to third persons including the judge in charge of the case. If the judgment has effect on the judge as well as the plaintiffs, in fact, the judge would be 'party' rather than 'co-creditor, co-debtor'. A judgment confirming the nullity or the non-existence, of a resolution of a corporation's shareholders' meeting, is effective to third persons(Commercial Act Article 380, 190 main sentence). Even though there is no provision, the above provision should be applied mutatis mutandis to other organizations(no matter whether the organizations have juridical personality or not). The reason is that if not, legal relations as to the organizations would be confused. Japan made the new law that stipulated those judgments' effectiveness on third persons in general juridical persons. In addition, if the judgment is effective to third persons, this case is a mandatory joinder and should be decided unitedly to all the plaintiffs(Civil Procedure Act article 67). But the court treated the case as a ordinary joinder and finally eight plaintiffs won the case, the others lost.