다수당사자소송과 합일확정

Abstract

In a case of co-litigation, procedural acts by one of the co-litigants or procedural acts by the counter party and any matters regarding one of the co-litigants, shall not affect other co-litigants [Ordinary Co-Litigation in Article 66 of the Korean Civil Procedure Act (KCPA)]. However, the KCPA permits an exception to this rule on the basis of the proceedings and substantive reasoning, and the Act incorporates the Indispensable co-litigation rule, in which a consolidated decision can be rendered by the court for all co-litigants. Article 67 ① KCPA states under the article-title of “Special Provision for Indispensable Co-Litigation” as follows: “In the case of a co-litigation in which the claims of such a lawsuit are to be unitedly decided on all co-litigants, the procedural acts by anyone of them shall take effect only for the benefit of all such co-litigants.” This provision, especially in connection with Article 67 ③ KCPA, enables the unity of the lawsuit material and procedural progress between the co-litigants. Article 67 ③ KCPA states as follows: “In the co-litigation under paragraph ③, in a situation where there exists any cause for interruption or suspension of the litigation procedures to one of the co-litigants, such interruption or suspension shall take effect on all co-litigants. The special provisions for indispensable co-litigation of article 67 KCPA are, however, applied mutatis mutandis to diverse forms of co-litigation, for example, preliminary or selective co-litigation; supplementary intervention, a subset of co-litigation; intervention as an independent party, each of which have different institutional purposes. For example, although the necessity of a consolidated decision in indispensable co-litigation is derived from the relationship of coalition between the parties, in the case of “the intervention as an independent party” the necessity of a consolidated decision results from the mutual strained relationships between the three parties. Such a procedural difference has an important bearing on the content of “the unity of the lawsuit material and procedural progress” as a trial method to attain a consolidated decision. Therefore, this article considers the necessity of a consolidated decision due to each institution‘s characteristics and establishes the specific contents of a consolidated decision combined with the institutional purpose. With these objectives in mind, after raising the problem in part I, in part II, this article discusses the detailed contents and reasons for a consolidated decision of all forms of Institutions, which require a consolidated decision. Following this analysis, part III investigates the rational scope and contents of the unity of the lawsuit material and procedural progress. Part IV concludes by the summarizing the key points of this article.