이행소송 계속 중 압류채권자가 제기한 추심소송의 중복제소 여부 - 대법원 2013. 12. 18. 선고, 2013다202120 전원합의체 판결 -

Abstract

The code of civil procedure provides that “Parties cannot bring a lawsuit again for a case that is under court proceedings”, prohibiting parties from bringing the same suit repeatedly to prevent abuse and conflicts of materielle Rechtskraft. On the other hand, Article 218, Section 3 of the code of civil procedure states that “Decisions entered for plaintiffs or defendants on behalf of others are binding on the others” to rule that the effect of decisions (materielle Rechtskraft) in third-party claims are valid on the parties. However, precedents view creditors’ consolidated action and collection action to belong to third-party claims while differentiating them in terms of the issue of double lawsuit. In other words, in cases of creditors’ consolidated action, the court holds that when debtors’ action for injunction and creditors’ consolidation action are filed together, double lawsuit applies by the latter. This is based on the fact that a debtors’ right to bring a suit does not lapse even when creditors’ consolidated action is filed. However, in cases of collection action, relevant court decisions reveal that both decisions are based on the premise that a debtors’ right to bring a suit lapses by an order of collection while in cases collection actions are filed in the course of debtors’ action for injunction, opinions are divided as to whether the latter collection action constitutes a double lawsuit. Namely, the minority opinion says that even when creditors’ consolidated action is filed in duplicate and the former suit lacks the requirements of a lawsuit to be illegitimate, the latter suit will be dismissed for the violation of the prohibition of a double lawsuit as long as the legal proceeding does not lapse by means of withdrawal and dismissal until the conclusion of argument of the latter suit under existing precedents. Therefore, a debtors’ lawsuit for collection will be dismissed in reality even when it becomes illegitimate for the lack of standing to sue by the order of collection leading to the dismissal of seizing creditors’ collection action for illegitimacy by the application of a double lawsuit as long as the proceedings of the former suit does not lapse. On the contrary, the majority claims that such a scenario produces a result where seizing creditors have to wait while debtors’ action for injunction to be dismissed for lack of standing to sue and the proceeding of which to lapse and file a collection action repeatedly which violates judicial economy to rule that a double lawsuit does not apply to collection action. Based on the premise that a debtor’s right to bring suit lapses by the order of collection, the majority is deemed to be a rational choice. However, the fundamental solution for the harmonized interests of parties in a collection action is to decide that the right to bring action does not lapse with regard to a debtor’s action for injunction in spite of the order of collection and provide solutions.