소송계약

Abstract

According to principle of law, freedom of agreement among litigants is commonly accepted, and this is also applied to civil procedure which is governed by principle of party disposition and principle of party negotiation. Namely, defendant and plaintiff are allowed to agree or contract regarding certain article with the purpose of generating certain legal effect which can directly or indirectly influence present or future civil procedure. However, the agreement is admitted conditionally. There exist certain restrictions because while civil procedure is conducted before governmental institution court, law of civil procedure which regulates civil procedure is a public law. According to regulations of law of civil procedure, agreement among litigants is valid when the agreement complies with the regulations. Agreement which has legal ground on provision has no problem. However, in case there does not exist a well written regulation, how the agreement is legally regulated becomes an issue. In this article, we contemplate characteristic's of law, in case it becomes a problem when agreement without legal ground on provision is admitted of legitimacy, mainly regarding abatement of claim during lawsuit contract. Furthermore, based on this, we examine requirement, efficacy, agreement to not appeal, and evidence contract of lawsuit contract. Field of lawsuit contract, influenced by inactiveness of debate on step in the proceedings, is a relatively stable theoretical field in the modern days. While theory and precedent regarding legitimacy theory which insists the validity of agreement by lawsuit is almost settled, conflict among jurisdiction contract theory, lawsuit contract theory and others can not be seen as resolved. The conflict is whether the determination of legal characteristics of these should be done by litigants' rational interpretation or by complex contemplation on external factors. The task of the theory is to develop uniform litigation theory as well as application of jurisdictional law in litigation. Recently, as a new form of agreement by lawsuit, seeing agreement among litigants as valid in principle just like truce agreement or ceasefire agreement, and processing it as management of due date designation is insisted. Subsequently, new forms of agreement by lawsuit are expected to emerge gradually. This paper is written to be used as a stepping stone to further the stability of field of lawsuit contract which will later become stabler by in-depth and developmental researches.