공유물 분할소송에서 판결과 조정의 형성력에 관한 연구-대법원 2013. 11. 21. 선고 2011두1917 전원합의체 판결에 관한 논의를 겸하여

Compromise is an essential requirement in the conciliation on the partition of co-owned property, but its validity ought to be determined in view of relevant statutory provisions stipulating to the effect that conciliation has the same effect as that of a settlement in court, such as Articles 29, 30, and 34(4) of the Judicial Conciliation of Civil Disputes Act and Article 220 of the Civil Procedure Act. In Supreme Court en banc Decision 2011Du1917 Decided November 21, 2013 relating to the standard for determining the effectiveness of change of real right where co-owners of property reach an agreement during a litigation or conciliation procedure on co-owned property partition, the presiding Justices expressed their views in the Majority Opinion: “[The] agreement among co-owners regarding the partition of co-owned property by including agreed matters into the conciliation protocol alone neither abolishes co-ownership nor forms a new legal relation, unlike in cases of co-owned property partition by trial.” However, one Justice delivered the Opinion dissenting from the Majority Opinion: “If conciliation is established where part of co-owned property belongs to each co-owner in the partition lawsuit, its protocol for partition in kind has the same effect as the judgment on co-owned property partition and constitutes ‘judgment’ under Article 187 of the Civil Act, and the change of real right becomes effective upon establishment of conciliation.” Inasmuch as the foregoing relevant statutes acknowledge conciliation to have the same effect as that of a final and conclusive judgment, the judgment regarding co-owned property partition has formative power. Therefore, no difference exists between conciliation and judgment or compromise in relation to formative power. This, in turn, leaves room to consider the possibility of both a narrow and broad construction of Article 187 of the Civil Act.