공동소송적 보조참가인의 법적 지위 - 대법원 2015. 10. 29. 선고 2014다13044 판결 -

초록

A withdrawal of claims(Klagerücknahme) for reopening of civil judgment(Wiederaufnahme des Verfahrens) by the party without agreement of Joinder-Party Auxiliary Intervenor(hereafter called just “intervenor”, Streitgenössische Nebenintervention) should be null because a withdrawal of claims for reopening of civil judgment must be harmful to intervenor. However, Korean Supreme Court has insisted that a assisted party could withdraw a ordinary claim without consent of the intervenor even though the effect of the judgment(such as res judicata) should be extended to the intervenor(Korean Supreme Court Judgment 2014Da13044). In addition, Joinder-party Auxiliary Intervention is quite different from the “pseudo-necessary suit group litigation(prozessrechtlich notwendige Streitgenossenschaft)“ because the intervenor can not have the standing in the litigation. If the assisted party withdraw litigation at her discretion, the action should be terminated even though the intervenor wanted to maintain the litigation. Usually the intervenor is real interested party such like bankrupt debtor as in this case. Therefore, the assisted party may not withdraw litigation without consent of the intervenor even in ordinary claims and in this respect, the Korean Supreme Court’s rulings should be changed in the near future.

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