참칭수계인에 대한 판결의 효력과 법원의 조치에 관하여

Abstract

Pseudo successor means a person who is involved in a case even though he/she has not the qualification to take over the proceedings which is interrupted upon a party’s death. A court shall reject the request for takeover of proceedings by a ruling, if it is deemed groundless. But if a court misjudge the request, pseudo successor may involved in the proceedings as a new party. In time that a court find their own mistake after succession, the court shall decide against the request. If a court turn down demand by final judgement on the ground that the pseudo successor is not a genuine successor of the dead party, the judgement is binding on the pseudo successor. On the other hand, non binding on the genuine successor. He/She may request for takeover of the proceedings in court of original instance as ever, because the case exist still in a state interruption effective in that court. If a court dismiss the original claim of dead party’s against the other party, the final judgement is binding on the pseudo successor. In this case, the judgement is also binding on the genuine successor, because the judgement bear a likeness to the case of false I.D. or unauthorized agent. The genuine successor may be saved through appeal or retrial. If an appellate court find that the pseudo successor has no qualification for takeover of proceedings after final judgement, dismissal of the request by ruling may the sufficient measures. But it is more appropriate that the court rend a final judgement as well as the ruling and send the case to the court of original instance to make the litigation-related clear. As for legislation, it is proper to revise some codes of the korean civil procedure law in much the same as the german system, in which a court shall decide by a interlocutory or final judgement not by a ruling for judgment on request for takeover. It may prevent several legal confusion which may be caused from court’s misjudgement on the request for takeover.