변론종결 후 계쟁물 승계인에 대한 기판력 확장의 법리 ― 판례의 유형화와 그 검토를 중심으로 ―

The article 218.1. of the Civil Procedure Code states that the effect of excluding further litigation shall be applicable to not only the party of litigation but also to the party who succeed property under dispute after completion of pleading procedure. There is no doubt that the party who receives the right and obligation of the substantial law which is the object of the lawsuit shall be the successor after completion of pleading. However, there are several opinions on whether the party who succeeds the property under dispute also shall be the successor after completion of pleading. Regarding this issue, the judicial precedents (1) stated the party who succeeds the property under dispute from the plaintiff who lost the case shall not be the successor after completion of pleading even if the party pleads the same as the plaintiff of the lost case, or (2) states that if the legal substance of the claim is concerned with receivables, the party shall not be successor after completion of pleading, but if the legal substance of the claim is concerned with a real right, the party shall be successor after completion of pleading, or (3) determined whether the party shall be the successor after completion of pleading by considering the general principles on the effect of excluding further litigation. As mentioned in the above, the judicial precedents seem to lack consistency on application of the effect of excluding further litigation to successor of the property under dispute, and these judicial circumstances may cause distrust of judicial judgement by diminishing predictability of judgement. Specifically, the judicial precedents (1) did not provide appropriate reason for the inapplicability of the effect of excluding further litigation even though both claims in prior and subsequent litigations were the same in substance and had problem that legal stability is not provided for the position of the defendant who won the prior case. Meanwhile, it seems that the judicial precedents (2) have ignored the objective scope of the effect of excluding further litigation by applying determination that is included in basis of judgement rather than in conclusion of judgement. On the contrary, the judicial precedents (3) acknowledged equivalent status for the successor of the property under dispute and determined whether the effect of excluding further litigation of the prior litigation shall be applicable to the subsequent litigation by separately applying preclusion of the effect of excluding further litigation depending upon equivalent relationship, contradicting relationship or prerequisite relationship between the object of prior and subsequent litigations, and therefore it is considered that these precedents of type (3) were most reasonable since they did not have the problems indicated for (1) and (2) in the above.