소송승계와 탈퇴의 효력

Abstract

This study aims to review each issue on how the judgment between the intervenor and the adverse party works to the party who withdrew from the litigation, and how to construe Article 80 of the Korean Code of Civil Procedure which shall apply in the succession of litigation, when the claim of the intervenor or the claim against intervenor was dismissed because the right or the obligation of the dispute was not alienated to the intervenor. In Korea unlike Japan, if the principal party do not withdraw from the litigation, although there is no dispute on the effect of the alienation between the principal party(alienor) and intervenor(alienee), the lawsuit between the principal parties and the lawsuit between the intervenor and the adverse party come to a normal joint trial which does not require the unity of dispute settlement in a legal procedure. A withdrawal from the litigation means to be rid of the burden of litigation for the withdrawer, therefore it must be guaranteed for the Opponent not to be sued by the withdrawer again or not to be necessary to bring a lawsuit against the withdrawer again. Article 80 of the Korean Code of Civil Procedure is significant in this regard. But the effect of the judgment between the intervenor and the adverse party should be restricted, when the claim of the intervenor or the claim against intervenor was dismissed because the right or the obligation of the dispute was not transferred to intervenor. The reason is that it is excessive to deprive the withdrawer of the substantive right for the ground of the convenience in the procedure.