재판장의 소장각하명령과 소각하 판결의 경계설정 – 대법원 2013. 9. 9.자 2013마1273 결정을 중심으로 -

According to the provisions of KCCP(Korean Code of Civil Procedure) art. 254, presiding judge shall fix a reasonable period, and order to rectify thedefects within such fixed period in case a written complaint is contrary tothe provisions of KCCP art. 249 (1). The same shall also apply to the casewhere stamps as required under the provisions of ACTs(for example, Actson the Stamps attached for Civil Litigation ets.) are not affixed to the writtencomplaint. We have this device of dismissal of written complaint(hereinaftercalled “DWC”) besides dismissal of lawsuit(hereinafter called “DL”) withoutholding pleading(KCCP art. 219) even after trial stage also. This device ofDWC is very unique but accepted by JCCP(Japanese Code of Civil Procedure). In KCCP DWC should be distinguished from another device of DL. Ina written complaint, the parties and their legal representatives, and the claimsand cause of action should be written. If they are not written or wronglywritten, the presiding judge shall fix a reasonable period, and order to rectifythe defects within such fixed period. When the plaintiff has failed to rectifythe defects within the period above mentioned, the presiding judge shalldismiss the written complaint by his order. By contrast, in the case of anunjustifiable lawsuit whose defects are not rectifiable, such lawsuit may bedismissed by a judgment without holding any pleadings or with trial also. In theory both of them are distinct from each other but in reality it is veryhard to tell them because some defects of the complaints are overlappedfor DWC and DL. For example, DWC and DL could be happenedsimultaneously in case defendant is already dead before the beginning ofthe law suit or the representative of the legal person is wrongly writtenin the complaint. If the complaint has such defects, the court could dismissthe suit and the presiding judge could also dismiss the written complaint. However, the Korean Supreme Court(hereinafter called “KSC”) said that thedefects should be distinguished and the court should choose the right devicesfor the corresponding defects. Therefore, a court should dismiss a lawsuitif the suit is unlawful whereas a court should dismiss the written complaintsif a suit is contrary to the KCCP art. 249(for example, parties are not writtenin complaints or representatives of the parties are wrongly written). However, the author thinks that this opinion of KSC is not appropriate from the viewpoint of legal theory and reality of legal situation in Korea. First of all, effectsof DWC and DL are quite the same and just different from each other inappeal form. Secondly, According to the KCCP art. 255, the provisions ofArticle 254 (1) through (3) shall apply mutatis mutandis to the case wherea duplicate of a written complaint is unable to be served. And if a defendantis already dead or the representative of the defendant is wrongly written,usually a written complaint could not be served and a written complaintitself could be dismissed by the presiding judge beside a suit could be dismissedby the court also. Eventually, we have to admit that DWC and DL are alternativesmethod for the remedies of unlawful suit or wrongly written complaintspartly. The opinion of the KSC should be changed and both of tworemedies(DWC and DL) are could be used alternatively in part.