호주 법원 판결에 기한 집행판결 청구의 소에서 번호계인 원고의 당사자능력

In order to be a party to a lawsuit under the Civil Procedure Act of Korea (“CPA”) and to carry out a lawsuit, one must have the capacity to become a party and the capacity to carry out a lawsuit. While the CPA regulates the capacity to become a party in Articles 51 and 52, questions arise as to the meaning of said provisions in cases where the parties are foreigners or foreign companies or organizations. In this article, the author reviews the Korean Supreme Court judgment of 2015, pertaining to a case in which the plaintiff, a so-called “Kye” (a traditional Korean savings plan named in the case in question Surry Hills Mutual Loan Club) composed of Koreans residing in Australia, filed a suit in South Korea seeking an enforcement judgment based upon a favorable judgment from a court of the State of New South Wales. Although the Supreme Court of New South Wales affirmed the plaintiff's capacity to become a party in a lawsuit in New South Wales, the Korean courts denied it by applying a doctrine applicable to the so-called “Kye”, as if it was the domestic “Kye” who had filed. The author examines whether such conclusions could be justified in light of Articles 51, 52, and 57 of the CPA. Since the law applicable to the loan club contract forming the Surry Hills Mutual Loan Club in this case may be the Korean law, the author does not argue that the Supreme Court’s conclusion is definitely wrong. However, it is regrettable that the Korean courts did not decide at all on the law applicable to the loan club contract, nor take into consideration the possibility of referring to the civil procedure law of New South Wales through either an application by analogy of Article 57 of the CPA or the application of choice of law rules unwritten in the CPA. All the more so considering that the list of the members of the “Kye” who make up the plaintiff in this case was actually attached to the judgment of the New South Wales and was thus clearly identified.