보조참가인에 대한 판결효의 본질

Abstract

It is an accepted principle that the primary effect of a final judgment, binding power and executory power, shall have an effect only on the parties - the plaintiff and the defendant- rather than the 3rd parties because a civil suit aims to resolve a dispute between the parties of a case. As for the effect of judgment on intervenor, however, Article 77 of the Civil Procedure Act prescribes that “a judgment shall also be binding on an intervenor except for a certain instances.”There has been competing different views on what such effect is- whether it is a binding power or other special power. Those views have been recognized as a theory of binding power, a theory of collateral effect and a new theory of binding power. This article focuses on examining those competing theories to find out the nature of the effect of judgment on intervenor which is prescribed in Article 77 of the Civil Procedure Act. The purpose of the system where an intervenor is allowed to participate in a suit is to make that intervenor himself or herself gain a benefit from the judgment in favor of him or she. Here, the court grants a person a status of intervenor because it recognizes that the intervenor has participated in constituting the backgrounds of the case at issue. That status of intervenor means that the intervenor can join the party for the case proceeding. Thus, it is no wonder that the final judgment of that case based on the backgrounds of case is binding on that intervenor so far as he or she is involved in those backgrounds and gets benefits from the winning of that case. Therefore, if a necessary procedure is guaranteed for an intervenor, there may be enough grounds that the intervenor on its own can enforce the final judgment against the opposite party with respect to the relationships between the intervenor and the opposite party not to mention the relationships between the intervenor and the party whom the intervenor join. If that is the case, what is the nature of effect of final judgment on relationships between the intervenor and the opposite party? We can deem that, apart from its binding effect or collateral effect, the effect of final judgment on the relationships between the intervenor and the opposite party amounts to a new institutional effect recognized by the principle of sincerity and faithfulness of Article 1 of the Civil Procedure Act if a necessary procedure is guaranteed for an intervenor; the party and the intervenor at their own risk sufficiently make arguments against opposite party; and the court makes its decision based on those argument.