제3자의 소송담당과 판결의 효력

Abstract

Third party standing in a lawsuit occurs where a person who is not a holder of rights or obligations under substantive laws becomes a party to a lawsuit. Here, whether or not a person who is a holder of rights or obligations but is not a party to the lawsuit is bound by the judgment rendered to the “third party with standing” becomes an issue. On this matter, Article 218 (Subjective scope of res judicata) of Civil Procedure Act provides that ‘a final judgment rendered to a person who becomes a plaintiff or defendant for another person shall also have an effect on such other person’ (Paragraph 3). And Article 25 (Subjective scope of enforceability) of Civil Enforcement Act provides that ‘a judgment, if it has effect on a person other than the party indicated therein, may be enforceable against or for such person’ (main body of Paragraph 1). The rationale for the effect that a judgment rendered to a third party (third party standing) has on the holder of rights or obligations is that the holder of rights or obligations, since his/her interest is represented by the third party with standing and the opposing party should not be compelled to multiple lawsuits for the same subject matter of lawsuit for reasons unknown to him/her, based on the principle of fairness, the holder of rights or obligations must be under the effect of such judgment. On the other hand, if the third party with standing wins the lawsuit, the opposing party is bound by the judgment in relation to the holder of rights or obligations because the third party with standing and the holder of rights or obligations must be deemed a single entity in the dispute involving the relevant subject matter of lawsuit and the opposing party being granted such procedural protection must accept the result of the lawsuit in relation to the holder of rights or obligations. Thus, among the cases of third party standing, as for a substitute third party with standing (such as receiver in a bankruptcy or for rehabilitated debtors), ex officio party, designated party or other voluntary third party with standing, since the standing thereof is based on the will of the holder of rights or obligations, since the third party with standing has to protect the interest (under substantive laws) of the holder of rights or obligations concerning the subject matter of lawsuit and since the fact that the holder of rights or obligations has no choice but to approve disposition of the right and interest (subject matter of lawsuit) performed by the third party with standing results in the interest of such holder being represented in the lawsuit by the third party with standing, it is natural that the holder of rights or obligations be bound by the judgment. In a case where a third party has lawsuit-handling authority in parallel with the holder of rights or obligations (parallel third party standing), e.g., creditor derivative suit, shareholder derivative suit, or pledgee’ exercise of security right on a claim, although there are differing positions on the lawsuit-handling authority of the holder of rights or obligations, the effect of judgment must be expanded to the holder of rights or obligations too because there is no basis for imposing on the third party debtor any disadvantage due to the creditor’s fault.