기판력의 작용과 범위의 관계

Abstract

A final and conclusive judgment shall have the effect of res judicata in so far as the matters contained in the text thereof are concerned according to the article 216 (Objective Extent of Res Judicata) ① of the Civil Procedure Act in Korea. And a final and conclusive judgment shall be binding on the parties, successors subsequent to a closure of pleadings, or persons possessing the object of claims on their behalf according to the article 218 (Subjective Extent of Res Judicata) ① of the Civil Procedure Act. The concept of Res Judicata already connotes the function and limited ranges of Res Judicata. Therefore we need to consider the effect of Res Judicata by way of the judgment tool that is three types of the function of Res Judicata which is divided into the relations of sameness, contradictory apposites or a previous question between the objects of a lawsuit and second lawsuit instead of taking into account only one of limited ranges of Res Judicata with three types of the function of Res Judicata neglected. And I think that to consider the effect of Res Judicata by way of the judgment tool that is three types of the function of Res Judicata is prior to the consideration of limited ranges of Res Judicata. This interpretation will put an end to some confusion that lawyers, law school students and others suffer because of the chaos derived from the uncertainty of the interrelation between the Function and Limited Ranges of Res Judicata. But Korean Supreme Court prcedents mostly have focused on the Objective Extent of Res Judicata and sometimes have mentioned three types of the function of Res Judicata separately. Korean Supreme Court prcedents also have mentioned the Subjective Extent of Res Judicata especially in regard to successors subsequent to a closure of pleadings with three types of the function of Res Judicata neglected. Recently the Korean Supreme Court rendered the judgment that a final and conclusive judgment shall not be binding on the successor subsequent to a closure of pleadings if there is no one of relations of sameness, contradictory apposites or a previous question between the objects of a lawsuit and second lawsuit. This prcedent is evaluated as the proper adjudication correcting past confusing precedents. However, this precedent has some defects that the Korean Supreme Court used the expression with a subtle nuance still confusing three types of the function of Res Judicata and the Objective Extent of Res Judicata and still focused on the Objective Extent of Res Judicata. Although the function of Res Judicata are classified into three types on the basis of the objects of lawsuits, we must discriminate three types of the function of Res Judicata from the limited ranges of Res Judicata to avoid confusion.