당사자표시정정의 허용 기준과 범위

Abstract

The Korean Supreme Court prcedents and quite a number of opinions presently support the so-called 'substantial indication theory' that intends to confirm a Party by means of all the things expressed in a written complaint. But the Korean Supreme Court has approved consistently the rectification of a Party into the legal heir who is actually a due defendant in the cases that a plaintiff 'not knowing' the death of the defendant files a written complaint with a court against an inexistent defendant who is already dead. The Korean Supreme Court prcedents are advancing and improving gradually. Recently the Korean Supreme Court rendered the judgment approving the rectification of a Party into the legal heir who is actually a due defendant in the case that a plaintiff 'knowing' the death of the defendant files a written complaint with a court against an inexistent defendant who is already dead. This prcedent is evaluated to mitigate and extend the accepted standards and the permitted limit of Rectification of a Party. However, this precedent has some defects that the Korean Supreme Court quoted irrelevant precedents to the case and the basis of the argument is more or less obscure. I think that the standards of confirmation of a Party in the time of filing a written complaint with a court might differ from the standards of confirmation of a Party in the time of pleadings. The former is based on the substantial indication theory, but the latter relies on whether or not a Party is the due Party and due processes were ensured for the Party. This precedent might be estimated to be proper on the ground that the Korean Supreme Court confirmed that the due Party was the legal heir of the dead from the first and approved the rectification of a Party into the legal heir not losing identity under the standards of confirmation of a Party in the time of pleadings.