민사소송법상 직접주의의 위반과 전부승소자의 상소이익 - 일본의 판례 및 학설을 중심으로 -

For an appeal to be legitimate, the benefit of the appeal is required. In order for the benefit of the appeal to be recognized by the parties, the disadvantage (appeal) due to the original trial must be recognized, and it is simple and clear that the judgment of disadvantage is based on a formal comparison of the application and the text of the decision. However, disadvantages are not recognized soley based on such formal comparison, but when an appeal is not allowed and a substantive disadvantage occurs due to the res judicata of the original judgment and specific validity is lost, then the benefit of the appeal may be recognized as an exception. This is the common theory and precedent in Korea and Japan. However, recently, the Supreme Court of Japan recognized the benefit of appeal to the all prevailing party in a case where the original judgment violated the rule of direct cross-examination. Not only is there no formal disadvantage to the all prevailing party, but there is no ground where the effect of the judgment, such as res judicata, would be disadvantageous. Thus, it is difficult to simply explain the basis for recognition of the benefit of appeal based on existing discussions and precedents. Although, as determined in the above precedent, even if the original judgment is confirmed because there is a clear serious illegality in the procedure that is grounds for retrial, it is difficult to say that the dispute has been finally resolved from the perspective of the plaintiff, who is the all prevailing party. Therefore, there is need to allow all prevailing party to appeal so that they can receive a judgment that eliminates such defects in the relevant litigation procedure. The question arises as to the basis for recognizing the benefit of the appeal to the plaintiff, who is the all prevailing party, especially on how to identify the disadvantage. The fact that the serious illegality of the basis of the civil suit existing in the original ruling constitutes a ground for retrial, and that the ground for retrial is clearly acknowledged without any room for dispute, puts the winning party in an unstable situation, which can be seen as a disadvantage (appeal) to the all prevailing party. When a major procedural defect was created by the court, and such defect is obvious and as long as a lawsuit for retrial is filed, it is inevitable that the same lawsuit will be disputed again. Then, even though the plaintiff won the entire case, being in an unstable state during the retrial period can be seen as being disadvantaged by the erroneous original ruling. Therefore, it seems appropriate to allow the plaintiff to appeal and relieve him of such disadvantage situation. Since violations of direct cross-examination are not uncommon in our practice, the above discussions and precedents in Japan may serve as a reference when similar issues arise. Furthermore, in developing discussions on recognition of exceptional appellate benefits for the all prevailing party, these cases and related discussions can serve as a foundation for further discussion. Would like to see further in-depth discussions in the future.