가사소송과 기판력의 주관적 범위

Abstract

The Family Litigation Act expands the subjective scope of res judicata unlike the Civil Proceedings Act. According to the Article 21 of the Act, final and conclusive judgment which has admitted a claim of the case of family litigation of category “ga” or “na”, shall have the effect on a third person, on the contrary, when a judgment rejecting the claim under the same category has been made final and conclusive, other persons entitled to institute a litigation may not file a litigation again, unless there exists any justifiable reason for having been unable to participate before closing the pleading in the fact-finding proceedings. But it is unconvincing to give a different effect to the final and conclusive judgment about the same case depending on victory or defeat. Some justify this article by the risk of fraud, some by the impossibility of the family status' change, others by the necessity to secure a proceeding-participation of the interested person. But neither is satisfactory grounds. The legislative aim of the Article 21 of the Act cannot be accomplished in this way such as the monolithic settlement of family status as well as the prevention of litigation abuse. It is desirable to give a perfect effect of res judicata on a third person regardless of admitting a claim or not under the current family litigation system which imposes the duty of ex officio investigation on the court, in addition expands a range of the persons entitled to institute a family litigation. Of course, the new system should be combined to the revision of the article which protects the right to participate on proceedings of the interested person.