소급효가 인정되는 개별 사안에서의 실권효의 적용 여부에 관한 연구

The subject of this paper is whether the loss of plead right is applied when the legal effect due to the facts that occurred after the standard time occurs retroactively before standard time. The loss of plead right does not apply to the claim of fact after the standard time of previous lawsuit because the claims is not contrary to the judgment with res judicata. And even the claim of fact before the standard time is not subject to the loss of plead right when it is not contrary to the judgment with res judicata. Thus, the ultimate criterion for deciding whether the loss of plead right applies to a claim is not whether the claim is related to the fact before the standard time but whether the claim goes against the judgment with res judicata. In the case of extinctive prescription, the claim that the extinctive prescription of the right identified in the previous lawsuit was completed does not mean that the right did not exist at the standard time of the previous lawsuit. So the claim does not go against the res judicata of the previous lawsuit and is not forbidden by the loss of plead right Same logic can be applied to agreement in division of inheritance and formative right. The opinion that formative right can be forbidden by the loss of plead right is not valid because formative right which is guaranteed by substantial law should not be deprived by code of civil procedure.