민사소송에 있어서 외국인의 법적 지위

Because the right of access to courts of Foreigners has the character as a basic human rights made by legislation in a country, the permission and range of the right could be decided by specific legislation. But due to the expand of awareness of human rights, the right is invest with foreigners generally in most country. About capacities of foreigners in international civil procedure, the principle of Lex Fori and personal principle have been in conflict traditionally. This issue should be resolved by concrete interpretation of the related law and regulations, because both principles are not always universal standards. The admissibility to a party of foreigners could be acknowledged by the principle of equality of capacity, if the party is natural and juridical person. Only the case of organization without regal personality have a actual profit of argument. With this issue, three theories, the principle of Lex Fori, personal principle and selective applicable rules have been in confrontation. Being as the article 51 of the korean civil procedure law shall apply to not Korean also foreigners and ‘else code’ in the article include the korean private international law, under the article 16 of the korean private international law the law of establishment is applicable law for the admissibility to a party of foreigners. Concerning the issue of the litigation capacity of foreigners, the principle of Lex Fori and personal principle have been in conflict, as to the matter of the interpretation of the article 57 of the korean civil procedure law. On the ground that the article 51 is general provision and the article 57 is specific provision, the law of the domicile is the applicable law for the natural foreign person, the law of establishment is applicable law for juridical person and organization without regal personality, under from the article 11 to 16 of the korean private international law. Meanwhile there are so many case, regarding the issue of the standing to sue of foreigners, it’s very difficult to suggest certain standard unlike the litigation capacity or the admissibility to a party. Almost the whole of theories propose a solution on a case-by-case basis which is decided after consideration to many circumstances. Especially, subrogation action by creditor, shareholder derivative action and class action are up for discussion. In case of the subrogation action by creditor, after considering of the possibility of the suit form and approval of receivable under the applicable law of plaintiff’s receivables, the standing to sue of foreigners could be recognize in the case that both conditions are acknowledged on that litigation. In a shareholder derivative action, the Lex Fori could be the proper standard for he standing to sue because of so many follow up proceedings like notice of an action, litigation intervention, combined hearing and so on. In case of class action, the article 11 of the korean securities-related class action act regulate about the qualification of plaintiff precisely. The standing to sue in such case could be recognized to any foreigners as long as he feel up those conditions of the article. In regard to the capacity to plead of foreigners, Lex Fori is an appropriate method, because the issue is related with the manage of the judicial system. Korea didn’t adopt ‘the rule of forced state attorney’ unlike germany. Therefore, anyone who have he litigation capacity have the capacity to plead also.