회사가처분의 효력론에 관한 재검토

There arises a lot more difficult problems on how to systemically understand the effect of company-related provisional disposition in association with the res judicata and the formative force endowed in the final and conclusive judgment in civil litigation. The Supreme Court’s theories seems to be insufficient and incomplete as regards the logics expounded in the relevant cases, and the commentators’ views also appear to reveal the limitation in the discussions based on the accurate understanding as to the interaction between the substantive regime and procedural regime, falling short of the structural harmonization and consistence. The Supreme Court’s theories have yet to reach the satisfactory explanation in the logical approach towards the ultimate and essential discussions due to the inherently case-bound judgment. The scholars also tend to be entrapped in the mythological concept of the formative nature of the provisional disposition on the tentative status-formation by uncritically accepting the predominantly prevalent views. Against overall ambience it is hard to effectively solve the various questions arising from the company-related provisional disposition. The substantively formative force shall not be intrinsically given from the formative nature of the provisional disposition judgment on the tentative status-formation. The so-called formative nature thereof would be procedurally indicated considering its formulation characteristics fixing temporarily and preliminarily the petitioner’s right to seek for the declaration, performance and formation irrespectively and individually against the contestant. Therefore such a concept has a limitation as a rudimentary vehicle in the course of solving many problems concerning the effect of the provisional disposition on the tentative status-formation. Against this backdrop it needs to pursue and construct the new theories by scrupulously scrutinizing the existing case law and theories as to the effect of the company-related provisional disposition. In this regard this paper attempts to suggest the following logical analysis structures. Firstly we have to classify the provisional disposition at issue under three categories by substantially discerning the kind and nature of the disposition’s holding, whereby into the declaratory disposition, performative disposition and formative disposition. The next step is to weigh on the relative enforceability of the performative disposition whether it could fall into the inchoate notion of the disposition expecting voluntary performance on the part of the contestant. In case of the performative disposition there could hardly exist the dispute regarding the effect of the disposition provided that the petitioner is entitled to enforce by acquiring the indirect compulsory execution instrument. Even in the context of the performative disposition no execution could arise from the disposition expecting voluntary performance. Therefore the violation of the performative disposition hardly lead to the nullification of the violated action, so the effect problem is relatively limited. On the contrary the declaratory disposition and the formative disposition has no enforceability (enforceable mandate) so that the execution problem could arise therefrom. The declaratory disposition aims to ascertain the right and legal relation between the parties, so the dispute of effect problem generally arises between the parties. Even the judgment on the merit in the following litigation has the erga omnes effect, such an effect could not be directly applied in determining the effect of violated action because its force is characterized not to be substantive but to be procedural. The formative disposition has the substantively formative effect in case the judgment on the merit is defined as the formative one (including the right possibly amendable to be the formative one by amending in the litigation). Despite its temporariness such an effect is same or similar as the effect from the judgment on the merit. In case the formative force rendered by the final and conclusive judgment followed by the formative disposition has the retroactive effect, the violated action or trade could be nullified. To the contrary in case such a judgment has the prospective effect, the violated action or the trade could not be annulled just from behavior of its violation, so that the total circumstances should be evaluated when deciding its validity nevertheless it could be determined as negatively given the attendant or subordinate nature of the disposition in relation to the litigation on the merit.