변론종결 후의 계쟁물 승계인과 기판력에 대한 접근방식

This Article explores a systematic approach for the issue whether res judicata reaches the person (“successor”) who acquires a property at issue from one party of action after the final court hearing in the specific case. Whether the claim of the original action is based on the law of property or on the law of obligation is the very useful standard in deciding on the issue of the assumed standing for action. However, the formalistic application of such standard is not enough to lead us to the right conclusion in situation of the following action by the defeated party where it is required to decide on the issue of conflict between the original action and the following action by the defeated party. This article classifies the cases involving the issue into two situations, one situation of execution by the winning party and the other situation of following action by the defeated party. Then this article tries to find a comprehensive approach in each situation which is consistent with the law of succession of action before the final court hearing. In situation of execution, it is necessary, as the first step, to decide whether the successor could have satisfied the requirement of standing for action if the succession had occurred before the final court hearing. In most cases involving the situation of execution, the right conclusion could be reached through the decision for assumed standing for action. In some cases, however, it is also necessary, as the second step, to compare the legal positions of the executing party and the counter party from the perspective of the substantive law such as civil law. In situation of following action by the defeated party, as the first step, the decision for assumed standing for action is also necessary as in situation of execution. If the defeated party is regarded as not satisfying the requirement of assumed standing for action, res judicata does not reach the successor irrespective of the claim of the following action by the defeated party. However, if the defeated party is regarded as satisfying the requirement of assumed standing for action, as the second step, it is required to decide whether the claim of the following action by the defeated party conflicts with the claim of the original action. This article applies the stepwise approach above to the facts of several cases of the Supreme Court involving the issue of the successor of party after the final court hearing and res judicata, and reviews their reasoning and conclusion. Some cases could have reached the same conclusion through the different reasoning. There could be a variety of approaches to the issue of the successor of party after the final court hearing and res judicata. This article is only one of them and on its way to more reasonable and flawless approach.