예비적·선택적 공동소송인의 절차적 이익의 현황과 개선방안

Abstract

Preliminary or selective co–litigation was introduced after the revision of Civil Procedure Code in 2002. It was introduced to promote the efficiency of litigation procedures and prevent a contradiction between the rulings, but it can also restrict the doctrine of disposition right and prohibition of disadvantageous alternation, which are the ruling ideologies of Civil Procedure Code, due to the "need for consolidated decision." It is because of the restriction that the co-litigants that do not appeal or get appealed in preliminary or selective co-litigation are subject to procedural disadvantages that will not happen in ordinary co-litigation. Having such problematic consciousness, this study reviewed the followings: First, the "need for consolidated decision" is not required in preliminary or selective co-litigation on the premise that its nature is the same as that of ordinary co-litigation, according to which the present study maintained that only the procedural effects of indispensible co-litigation should be applied when interpreting Article 70, Clause 1 of Civil Procedure Code. Secondly, the study, however, reviewed the infringements of procedural interests of co-litigants, which could happen when the precedents recognized the "need for consolidated decision" in preliminary or selective co-litigation, by the cases, as well. The review results show that co-litigants could be subject to unfavorable rulings regardless of their intention when they appealed or did not get appealed and point out that it is a procedural disadvantage that they will not have received in ordinary co-litigation. Finally, the investigator argued that the claim for the "need for consolidated decision" should be controlled in preliminary or selective co-litigation and raised a need to observe the principle of prohibition of disadvantageous alternation thoroughly in order to correct the problem. If the need for consolidated decision cannot be given up, the best alternative plan should be to guarantee the co-litigants that did not get appealed the full procedural right of participation. In the current trial business, the right to defense in attendance and defense for offense is granted to the co-litigants that did not get appealed, but it was pointed that more active participation in litigation should be induced from them.