제3자에 대한 반소의 적법성 - 대법원 2015. 5. 29. 선고 2014다235042, 235059, 235066 판결 -

Abstract

The Supreme Court Decision No. 2014 Da 235042, 235059, 235066 rendered on May 29, 2015 (Decision) holds that a defendant, in principle, may not file a counterclaim against any third party, in addition to a plaintiff. It also states, however, that if a counterclaim to be instituted by the defendant constitutes a mandatory joint action, such counterclaim may be permitted upon satisfaction of the requirement for addition of a mandatory joint litigant under Article 68 of the Civil Procedure Act. The Decision is of great significance since it is the Supreme Court's first ruling on the lawfulness of a counterclaim against a third party. This study critically analyzes the Decision which finds a counterclaim against a third party illegal when it is not a mandatory joint action as in the case subject to the Decision. In addition, this study suggests that the scope of a lawful counterclaim against a third party should be broadened. It also emphasizes that a defendant, who passively became a party to litigation, should be allowed to shift to a proactive stance according to relevant circumstances and file a counterclaim against an appropriate third party related to the original claim in any manner whatsoever.