당사자의 사망이 소송절차에 미치는 영향

• 발행기관: 한국민사소송법학회
• 저자명: 유병현
• 간행물 정보: 『민사소송』제12권 제1호, 33~58쪽, 전체 26쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2008.05.30

영문 초록

If a party dies while an action is pending before a court, the proceedings are interrupted and his status as a party is succeeded by his successor pursuant to Acts. In this case, the proceedings shall be taken over by his successor, an administrator of inherited property, or any other person who is bound to continue the lawsuit pursuant to Acts. If the court doesn’t realize a part is dead during pending lawsuit and pronounce a judgement against him, the judgement is effective, and his successor can attack it by filing an appeal or a retrial. If the judgement is conclusive, it has the effect of res judicata to dead party s successor. The successor take that effect not as a ‘successor’ of Civil Procedure Act §218 (1) but as a ‘party’ of Civil Procedure Act §218 (1). If a plaintiff unknowingly institute a lawsuit against a defendant who had already died before an lawsuit is pending, he can correct the mistake, namely, change the party with the successor. According to The Supreme Court it is not party-alteration but party-rectification, which makes interruption of prescription is able to begin when the plaintiff files the complaint against to the dead defendant. But it would be a party-alteration pursuant to Civil Procedure Act §260 because a new person is entered into the proceedings through changing parties. A judgement rendered to dead party is null. It has no claim preclusion.

목차

I. 서 설

II. 소송계속의 발생 시기와 종료 시기

III. 소송계속 중의 사망

IV. 소송계속 이전의 사망

V. 맺음말

참고문헌

키워드

당사자의 사망 소송계속 소송수계 소송절차의 중단 당사자표시정정 당사자변경 기판력 Death of a Party Pending of Lawsuit Taking over Proceedings Interruption of Proceedings Rectification of a Party Alteration of a Party Res Judicata Claim Preclusion