판결의 하자(瑕疵)의 소송상 취급 - 판결의 편취를 중심으로 -

Minor defects on a Judgment are treated as cured(settled) when the judgment becomes a final one and take effects. But defrauded judgments, obtained by cheating the opposite party or the trial court, cannot be justified by simply emphasizing the legal stability. The basic procedural methods for redressing the injustices are retrial and supplementary appeal through which the defrauded judgement itself can be nullified. But when a defrauded judgment enters into enforcement, there arise issues for redemptions of the infringed properties. In general, to remove the binding forces, i.e., res Judicata and power of execution, of a defrauded judgment, the deceived can choose his(her) remedy among a retrial and a supplementary appeal, and in some cases, he(she) will be endowed with claim objections (Vollstreckungsgegenklage). But there are vehement controversies surrounding the applicability of the retrial and the supplementary appeal on certain special cases. We can see the most problematic case when a plaintiff files a suit with a false address of the defendant to bring about the mis-service of litigation documents on a disguised defendant and thus hamper the procedural activities of the real defendant. In this case, the judgement is bound to be delivered to the disguised defendant and the real defendant fail to notice even the rendering of the judgment. The established precedents of the Supreme Court and majority opinion of scholars hold that retrial(or supplementary appeal) cannot be applied on this case, in spite of the article 451 of Civil Procedure Law which provides such a situation to be one of the retrial grounds. They assert that the service of judgment on a disguised party cannot take effect and the case is still pending in the trial court. Thus the defeated party should file an ordinary appeal to higher courts in lieu of a retrial or a supplementary appeal. But it seems to be natural, taking the article 451 into consideration, to permit the defeated party to file a retrial or a supplementary appeal disregarding the validity of the judgment service. When the defrauded judgment came into enforcement, another difficult problem arises surrounding the recovery of the property loss of the defrauded party. It must be recovered through a restitution suit against the opponent or through a suit seeking for damages. But, in general, judgment enforcements cannot constitute unjust enrichments or torts. The Supreme Court holds that enforcement of a judgment does not constitute an unjust enrichment. So, the party seeking for the restitution, should annul the defrauded judgment through retrial prior to the restitution suit(except the above false-address case). Majority of scholars support this opinion. Unlike the above unjust enrichment suit, The Supreme Court shows a little mitigated attitude to a suit seeking for damages. It grants the direct filing of a damage suit without nullifying the enforced judgment when the infringement of the procedural rights of the defrauded party is excessively severe.