재판장의 소장각하명령과 소각하 판결의 경계설정

Abstract

According to the provisions of KCCP(Korean Code of Civil Procedure) art. 254, presiding judge shall fix a reasonable period, and order to rectify the defects within such fixed period in case a written complaint is contrary to the provisions of KCCP art. 249 (1). The same shall also apply to the case where stamps as required under the provisions of ACTs(for example, Acts on the Stamps attached for Civil Litigation ets.) are not affixed to the written complaint. We have this device of dismissal of written complaint(hereinafter called 'DWC') besides dismissal of lawsuit(hereinafter called 'DL') without holding pleading(KCCP art. 219) even after trial stage also. This device of DWC is very unique but accepted by JCCP(Japanese Code of Civil Procedure). In KCCP DWC should be distinguished from another device of DL. In a written complaint, the parties and their legal representatives, and the claims and cause of action should be written. If they are not written or wrongly written, the presiding judge shall fix a reasonable period, and order to rectify the defects within such fixed period. When the plaintiff has failed to rectify the defects within the period above mentioned, the presiding judge shall dismiss the written complaint by his order. By contrast, in the case of an unjustifiable lawsuit whose defects are not rectifiable, such lawsuit may be dismissed by a judgment without holding any pleadings or with trial also. In theory both of them are distinct from each other but in reality it is very hard to tell them because some defects of the complaints are overlapped for DWC and DL. For example, DWC and DL could be happened simultaneously in case defendant is already dead before the beginning of the law suit or the representative of the legal person is wrongly written in the complaint. If the complaint has such defects, the court could dismiss the suit and the presiding judge could also dismiss the written complaint. However, the Korean Supreme Court(hereinafter called 'KSC') said that the defects should be distinguished and the court should choose the right devices for the corresponding defects. Therefore, a court should dismiss a lawsuit if the suit is unlawful whereas a court should dismiss the written complaints if a suit is contrary to the KCCP art. 249(for example, parties are not written in complaints or representatives of the parties are wrongly written). However, the author thinks that this opinion of KSC is not appropriate from the view point of legal theory and reality of legal situation in Korea. First of all, effects of DWC and DL are quite the same and just different from each other in appeal form. Secondly, According to the KCCP art. 255, the provisions of Article 254 (1) through (3) shall apply mutatis mutandis to the case where a duplicate of a written complaint is unable to be served. And if a defendant is already dead or the representative of the defendant is wrongly written, usually a written complaint could not be served and a written complaint itself could be dismissed by the presiding judge beside a suit could be dismissed by the court also. Eventually, we have to admit that DWC and DL are alternatives method for the remedies of unlawful suit or wrongly written complaints partly. The opinion of the KSC should be changed and both of two remedies(DWC and DL) are could be used alternatively in part.