訴訟契約에 관한 一般的 考察

Abstract

The agreement relating to litigation refers to an agreement that is made before the occurrence of a litigation or in a non-litigious setting between current or prospective litigants that enter into such agreement for the purpose of creating direct or indirect legal effects on a certain current or prospective civil litigation. It is not a matter of whether the power of a judge can be restricted by the agreement of certain interested parties, but a matter of whether the parties have the power of deciding the legal effects on litigation through contract. A part of public law, the Civil Procedure Act carries mandatory effect in principle. However, if the parties are allowed to have an effect on the legal effects of litigation directly through their agreement, then the mandatory nature of the Civil Procedure Act will be limited. Therefore, while the legality of such agreement has been recognized when the effectiveness of agreement relating to litigation such as an agreement on jurisdiction (Article 29) and an agreement on no further appeal (a proviso in Clause 1 of Article 390) is specifically provided in the Civil Procedure Act, there have been controversies over the effectiveness of certain agreement relating to litigation that are not specifically provided in the Civil Procedure Act in terms of to what extent such agreement could be recognized as effective under legal interpretation. In this paper, an attempt is made to establish a general theory on how these agreements relating to litigation should be dealt with under the Civil Procedure Act. Because the issues relating to the agreement are directly related to the allocation of power between the court and the parties, they will not be limited to theoretical realm and will also have significant practical implication. In this paper, the legality of agreement relating to litigation and the legal characteristics are examined first. A special attention is given to what procedural law effects there are depending upon the legal characterization. In addition, in view of the fact that the agreement relating to litigation is agreed before a litigation or outside the context of a litigation, it is examined whether civil law contractual provisions may directly apply to the contractual agreement on dispute resolution methods. It is examined whether the agreement relating to litigation has binding effect on third parties and, if so, who the third parties are in terms of subjective scope. Also examined are the types of litigation and matters in terms of objective scope to which the agreement relating to litigation is applicable.