사해방지참가의 요건과 심판절차 - 대법원 2014. 6. 12. 선고 2012다47548 판결을 중심으로 -

In the Supreme Court Decision (2012Da47548)(hereinafter “this ruling”), the Supreme Court of Korea clarified that in deciding the meaning of ‘the likelihood to be infringed pursuant to the result of lawsuit’under the Section 79 of the Korean Civil Procedure Act(hereinafter the “Civil Procedure Act”), the requirements of the third-party intervention to prevent an act of fraud should be differentiated from those of the obligee's right of revocation under the Section 406 of the Korean Civil Act(hereinafter the “Civil Act”). However, this ruling does not follow both the intent and history of the adoption of the third-party intervention to prevent an act of fraud as a method of judicial economy as well as a reflection of the goal of the obligee's right of revocation and the nullification of a fictitious declaration of intention made in collusion with any other party under the Section 108 of the Civil Act during the civil procedure. In addition, the dismissal of the application of this third-party intervention to prevent an act of fraud based on the relative effectiveness of the obligee's right of revocation results in the obstruction of the use of a method for preventing an act of fraud between a plaintiff and a defendant in a principal law suit in order to cause legal or actual risk of harm to the third-party’s interests. According to this ruling, Any third person who claims that his rights are likely to be infringed pursuant to the result of lawsuit, is not permitted to intervene in the original lawsuit as a third-party intervention to prevent an act of fraud by making either side or both sides of the parties the other party. Instead, that third-party should initiate a lawsuit of revocation under the Section 406 of the Civil Act after conclusion of the original lawsuit between the plaintiff and the defendant, and thus, this goes against the permission of intervention to prevent an act of fraud during the civil procedure with the same goal of the obligee's right of revocation. Further, this ruling does not correspond to the judicial economy as well as the settlement of problems at one time because any third-party dismissed as the third-party to intervene in order to prevent an act of fraud during the original lawsuit should sue plaintiff in another lawsuit to preserve his rights and interests, resulting in several lawsuits which delay the resolution of the disputes even though his application to intervene as third-party to prevent an act of fraud satisfies the requirements of an independent lawsuit. Considering the judicial economy as well as the settlement of problems at one time, this case should have been tried through a method of consolidation of lawsuits, or if not satisfied the requirements of consolidation of lawsuits, an independent lawsuit, in the procedure of the original lawsuit.