민사소송절차에서 당사자능력과 소송능력을 결정하는 준거법

Previous discussions on foreigners’ capacity to sue or be sued and protection in the civil proceedings have concentrated on construing special provisons of the Civil Procedure Law regarding the issue as procedural. However, the capacity to sue or be sued and protected parties should be treated as substantive since they are closely related to the capacity to enjoy rights and capacity to act in the Civil Code. Therefore, foreigners’ capacity to sue or be sued and protection in the civil proceedings shall be determined after the capacity to enjoy rights and capacity to act are determined not under the Civil Procedure Law but under the applicable law designated by the Private International Law. Despite the above discussion, it is necessary to make clear foreigners’ capacity to sue or be sued and protection in the civil proceedings by way of legislation as there could be wide range of interpretation due to uncertainty of the related Civil Procedure Law provisions. Furthermore, it is hard to find any good reason to discriminate foreigner in relation to parties’ protection in the civil proceedings. I am of the opinion that it is necessary to revise the Civil Procedure Law in order for parties’ protection in the civil proceedings to be determined under the one rule regardless of parties’ nationality.