한국법상 「판례」의 의미 - 대법원 2021. 12. 23. 선고 2017다257746 전원합의체 판결에 비추어 본 주론(主論)과 방론(傍論)의 구별

The Supreme Court en banc Decision 2017Da257746 declared that the supplementary service stipulated in the Civil Procedure Act also constitutes “the service by a lawful method” as referred to in Article 217(1)2 of the Civil Procedure Act, which regulates the requirements to recognize and execute a foreign court’s final judgment in Korea. The Supreme Court overruled two prior decisions which were contradictory to the en banc decision. However, Justice Kim Jae-hyung dissented on the ground that prior decisions should not be regarded as “precedents”, so overruling these decisions was unnecessary, as the lawfulness of supplementary service was not relevant in those decisions. This paper intends to research the distinction between the ratio decidendi and obiter dictum in relation to the en banc decision. It reviews the debates in Common Law countries, Germany, and Japan, and examines the academic opinions in Korea. My opinion is that the reasoning of a decision is a ratio decidendi when it is indispensable to reach the result of the decision. If not, it is only an obiter dictum. In case of an obiter, the Supreme Court need not overrule the previous decisions by the en banc session. If any deviation from the obiter dictum should be done by the procedure of overruling the precedent, a decision that deviated from the obiter dictum by the small panel, not by the en banc session, will counstitute grounds for retrial. However, such logic would lead to inefficent use, if not waste, of judicial resource.