소송물 개념의 가변성에 대한 비판적 고찰

A matter of a lawsuit refers to the ‘claim in litigation’ submitted to the court by the plaintiff, that is, the object of the lawsuit (=object of the court’s judgment). Once decided, the litigation matter includes the merging of claims, modification of claims, prohibition of duplicate lawsuits, and the objective scope of res judicata. Litigation theory is undoubtedly a very important issue and difficult problem in modern civil litigation jurisprudence in that it serves as a standard and forms the framework of litigation. Many discussions regarding the litigation matter have been taking place for a long time in Germany, Japan, and Korea, and have led to debates over the litigation matter, and it is impossible to find scholars anywhere who completely agree on the litigation matter. Among the various theories related to litigation disputes, ⅰ) the old substantive law doctrine is ‘claim of rights under substantive law’, and among the litigation legal doctrines, ⅱ) the dual theory (二肢說) is ‘application (subject of claim) and facts (cause of claim)’ On the other hand, ⅲ) Ilji theory (一肢說) is understood only as an ‘application’ and as a litigation matter. Recently, iv) new substantive law theory has been advocated, which revises the concept of traditional civil law claims and understands ‘claims of claims under substantive law in a modified sense’ as litigation matters. The arguments of each of the above theories are, in principle, based on the unity of litigation theory and are currently the majority opinion. However, in recent years, along with doubts about the dogma of uniformity of litigation theory, rapid changes in the times surrounding litigation, and the litigation itself changing from the filing of a lawsuit to its completion, the principle that the standards at the time of commencement of litigation must be adhered to until the end is not systematic. It is a past theory that should be emphasized, and it is problematic to regard it as valid to date. In other words, there are attempts to give up the unified and absolute structure of litigation theory and to construct various concepts of litigation objects individually by dividing cases. For example, with regard to the issue of the litigation process, the litigation matter is viewed broadly and all facts suitable to justify the plaintiff’s application belong to the litigation matter (based on the log theory), but the scope of res judicata is narrowly viewed to protect the losing party. For this purpose, the facts, together with the application, are said to be components of the lawsuit (based on this theory). This is a discussion on “relative litigation theory,” which is one of the themes of the litigation dispute, and emphasizes the need for an individual and relative concept of the litigation object according to i) the type of lawsuit, ii) the governing principle of the litigation procedure, and iii) the function of the litigation object. This is also the opinion of German and Japanese scholars. In other words, it refers to the issue of whether to construct the concept of litigation matter in a unified manner or to construct it individually by considering each of the above elements. In the following, we examine cases where the concept of litigation matter is treated differently by specifically distinguishing the three elements above.