當事者의 確定에 관한 몇 가지 문제

Abstract

The main issues in this article are as follows: ① On fixation of parties: Even though the time of fixing the parties can be extended from 'the time of filing of a lawsuit' to 'the reasonable period after the filing of a lawsuit" according to the opinion of majority scholars, it does not warrant that the assuming be included in the sphere of court's awareness. Even though the court should fix the parties within the reasonable period after the filing of a lawsuit, this means the court fix the parties regardless of its awareness. This negates the necessity of extension. For this reason, the writer holds the position that the fixation of the parties should be determined by the representation theory and the time of fixing the parties should be the time of filing of the lawsuit. ② All the procedural acts should be treated as the acts of unauthorized agent. A lot of scholars, especially scholars holding the act theory or norm classification theory assert that disguising parties are the real parties, but the fixation of the parties based on the outward acts of the disguising parties is irrelevant with the intention of the disguising parties. This approach can be valued as favorable fiction by the courts. But fiction is fiction. The fiction that the disguised parties are real parties does not contradict to allow the effects of unauthorized agency. ③ The precedents hold as follows: the judgments which are procured by the conspiracy between the plaintiffs and the disguising parties is valid, but the period of time of appeal does not lapse even though the disguising parties receive the judgments serviced by the courts as the period of time of appeal run from the time of receiving the judgments by the individual real parties. In contrast, the writer asserts that the receipt of judgments by the disguising parties correspond to the receipt by the unauthorized agents and if the judgments are decided finally and conclusively, the real parties should file the retrial suits to be rescued. ④ The precedents allow to correct the representation of the parties on the premise of valid pendency of lawsuit. But the writer negates its pendency and the correction as that of the written complaint before pendency.