Summary
Where there is lawful ratification, the effect of the procedural acts prescribed by the statutory text is retroactive to the time of the acts.
5.1The Standard by Which the Path Opens
Defects in litigation capacity, authority of representation, and the like have the route of an order to correct, and where there is concern about harm from delay, provisional acts may also be permitted. Authority obtained late and a lawsuit that never existed from the beginning cannot be regarded as the same. Representative B of Organization A filed a lawsuit in the organization's name, but appointment materials were not submitted. In this scene, if the defect in Representative B's representative authority is later cured, the question is how the lawsuit he originally filed differs from one that never existed from the beginning. Going beyond the previous section's recognition of the route of an order to correct, this section examines what effect ratification after correction gives to the preceding act, and what the criterion is for opening the channel of this remedy.
Article 60 of the Civil Procedure Act provides in its text: "Where a person in whom there is a defect in litigation capacity, statutory representative authority, or the conferral of authority necessary for an act of litigation has performed an act of litigation, and the corrected party or statutory representative thereafter ratifies it, that act of litigation takes effect retroactively to the time it was performed." Here, 'the person who performed the act of litigation' refers to the party or representative in whom there was a defect in capacity, representative authority, or the conferral of authority, and 'the corrected party or statutory representative' means the person who became the subject of the declaration of intention after that defect was cured. Ratification goes no further than having the act already performed by the person bearing the defect treated as valid afterwards (Civil Procedure Act, Article 60).
The retroactivity prescribed in the above text arises only after the requirement of ratification is satisfied. That is, when the corrected party or statutory representative subsequently accepts the preceding act of litigation as valid, that act of litigation has effect retroactively to the time the act was performed. Accordingly, the criterion for opening the channel of this remedy is distinguished as follows. Where party capacity, litigation capacity, or representative authority has been obtained, or where statutory correction and ratification have been completed, the entrance to this remedy opens. In other words, the two stages—the state in which the defect in capacity or representative authority has been cured, and the retroactivity by which the act bearing that defect becomes valid—are separate determinations, and the latter stage is not automatically fixed merely because the former stage has been achieved.
However, the counterargument may be raised that retroactive effect could impair the opposing party's procedural reliance. The opposing party would have responded on the view that the lawsuit filed by the party bearing the defect was invalid from the beginning, and if it is later treated retroactively as having had effect from the beginning, the defensive position built up until now is shaken. The concern that subdividing defects may exclude too early matters that are capable of correction comes from the same context. That said, this counterargument does not change the conclusion. Correction alone cannot establish that there was also an intention to ratify. The mere fact of correction is insufficient to establish the intention of subsequent validation, and that determination must be supported separately.
The analysis now returns to the synthetic scene. Whether Representative B had authority to represent the organization must be confirmed by appointment materials and the like, and where there are no materials to check the identity of the organization or the effect of the representative's appointment, the object of determination in this section itself remains. If the organizational articles, the representative appointment materials, the order to correct, and the instrument of ratification are later submitted and the defect in representative authority is properly corrected and ratified, the pre-correction state alone does not continue to bar it. However, since correction alone cannot establish that there was also an intention to ratify, retroactive effect as of that time can be discussed only where an instrument of ratification and the like has appeared. The year, the amount, and the outcome of success or failure are not set in the scene, and the actual result of performance has not been confirmed.
The conclusion permitted by this section extends only to the point that, once correction and ratification are in place, the effect of the preceding act of litigation can retroact to the time of the act. Invoking retroactive effect, one cannot immediately treat as valid an act already performed in a defective state, nor can correction alone be taken to mean that ratification also occurred. Conversely, where the defect has been properly corrected and ratified, the pre-correction state alone cannot continue to exclude that act. Determinations beyond that—that is, how to distinguish the correction of a defect from the substitution of a party—are not the province of this section.
5.2The Conditions That Block Relief
Moving on to the next stage, where ratification follows correction, the temporal effect borne by the preceding act and the conditions under which its channel closes come to light. In this scene, whether the lawsuit B filed itself can be treated as valid, or whether the channel for securing its validity remains open, is not yet determined. What must first be settled before that is what ratification after correction confers upon the preceding act of filing the complaint.
As to this question, the relevant text is found in Article 60 of the Civil Procedure Act. That Article provides: "Where a person in whom there is a defect in litigation capacity, statutory representative authority, or the conferral of authority necessary for an act of litigation has performed an act of litigation, and the corrected party or statutory representative thereafter ratifies it, that act of litigation takes effect retroactively to the time it was performed." The subject indicated by this text is the person who performed the act of litigation while bearing the defect, and the subsequent act is the ratification by the corrected party or statutory representative. The conditions must be satisfied together, two in number. One is that the preceding act bore a defect in capacity or authority; the other is that an intention to ratify existed after that defect was corrected. When those two conditions are satisfied, the effect prescribed by the statutory text arises retroactively to the time that preceding act was performed.
For such retroactivity to arise, the preceding act itself must have existed at the time of the act, and that act must return to a state in which it can be treated as valid. In other words, where a defect in capacity or representative authority remains and one is still at a stage at which the preceding act cannot be treated as a valid act of litigation, the remedy that continues only through correction and ratification does not open. If at least one of the requirements of correction and ratification demanded by the statutory text is not satisfied, there is no room for the retroactive effect of that preceding act to arise. In this determination, the persistence of the defect and the correction and ratification of the defect must be distinguished: the former concerns what state the preceding act is in, and the latter concerns whether the grounds for restoring that state to validity are in place. If the two are mixed in a single determination, both what the state at the time of the act was and what the requirements for changing that state are become blurred together.
The counterargument that retroactive effect may impair the opposing party's procedural reliance targets the inconvenience and loss brought about by such a reversal in time. The opposing party suffers that inconvenience in that, in the lawsuit proceedings carried forward in reliance on the pre-correction state, the party's own responses may have to change by reason of an effect that returns belatedly. Yet regardless of the value targeted by this counterargument, correction alone cannot establish that there was also an intention to ratify. Correction means only the fact that the defect has been remedied, while ratification means a separate intention to accept the preceding act of litigation as valid afterwards. That the statutory text requires the ratification of the corrected party or statutory representative means that those two facts must each be confirmed. Therefore, even if the problem of reliance pointed out by the counterargument is accepted, it cannot be held that the retroactive effect of that preceding act arose on the strength of correction alone.
In relation to this scene, what can be confirmed from the record is the presence or absence of the organizational articles, the representative appointment materials, the order to correct, and the instrument of ratification. Whether the lawsuit filed in the organization's name by Representative B of Organization A, in the state where the appointment materials had not been submitted, was an act of litigation performed while bearing a defect in representative authority, and whether materials making B the representative were later put together, depends on this presence or absence. Where there are no materials to check the identity of the organization or the effect of the representative's appointment, the determination at this procedural stage remains undetermined. However, reviewed under the foregoing conditions, if the defect has been properly corrected and ratified, the pre-correction state alone does not continue to bar it. This one line is merely a test with altered conditions and not a fact that actually occurred in the scene, and from the scene alone it cannot be determined whether the defect was corrected or whether ratification occurred.
The conclusion permitted by this procedural stage is this. Where the ratification of the corrected party or statutory representative is present as well, that preceding act of litigation acquires effect retroactively to the time of the act. However, where a defect in capacity or representative authority remains so that the preceding act cannot be treated as valid and the statutory requirements are not satisfied, that channel is closed. What is not permitted here is a determination that treats an intention to ratify as also present on the strength of correction alone, or a determination that denies the retroactive effect of that preceding act on the strength of the pre-correction state alone.
5.3The Boundary That Remains When There Is No Data
What effect does ratification after correction give to the preceding act? This distinction is important in that authority obtained late and a lawsuit that never existed from the beginning cannot be regarded as the same. Defects in litigation capacity, authority of representation, and the like have the route of an order to correct open to them, and where there is concern about harm from delay, provisional acts may also be permitted. On the premise of this conclusion, in the scene where Representative B of Organization A filed a lawsuit in the organization's name but the appointment materials were not submitted, the question is whether the future effect of the preceding act of litigation can be fixed now.
Article 60 of the Civil Procedure Act provides: "Where a person in whom there is a defect in litigation capacity, statutory representative authority, or the conferral of authority necessary for an act of litigation has performed an act of litigation, and the corrected party or statutory representative thereafter ratifies it, that act of litigation takes effect retroactively to the time it was performed." This text respectively confines the subject to a person with a defect, the act to an act of litigation such as the filing of a complaint, and the condition to ratification after correction.
The retroactive effect prescribed by the above Article opens only on the condition that a lawful ratification occurred. Here ratification is defined as the subsequent acceptance of the preceding act of litigation as valid. This definition shines when contrasted with correction. If correction is the procedure that fills the defect in capacity or authority of representation, ratification is a declaration of intention by which the subject recognizes the act already performed as valid. Only by not mixing the two stages can the time when the defect was remedied and the time when the act came alive be seen separately.
What the retroactive effect provision turns upon is the loss of the opposing party's procedural reliance. This is because if the plaintiff obtains authority late, time may be wound back as though the act had been valid from the beginning, on the ground that the opposing party meanwhile had the proceedings carried forward. The complaint that subdividing defects may exclude too early matters capable of correction comes from the same context. Ratification remains as a condition requiring a separate intention.
Returning to this scene, there is no record showing whether B's appointment as representative was effective when B filed the lawsuit: neither the organizational articles nor the representative appointment materials are in the record. In this situation, the identity of Organization A, B's representative authority, and whether B's filing of the complaint is recognized as the organization's act of litigation must each be examined. If the fact that the defect was properly corrected and ratified is confirmed, the pre-correction state alone does not continue to bar it, but if even one settled instrument of ratification is absent from the record, the time of retroactivity is not fixed. This matter, in which the materials of determination are not specified, differs from a defect that cannot be remedied.
Accordingly, what is permitted in this section is the narrow determination that, where there is a lawful ratification, the effect of that act of litigation retroacts to the time of the act. The boundary of that determination is to leave as undetermined, rather than to declare impossible, matters that cannot be settled for lack of materials.
5.4The Records Needed for Determination
If the defect is thereafter filled, the question remains whether the preceding lawsuit was invalid from the beginning or becomes valid later. But before giving that answer, what the determination is to rest upon must be settled as well. This question, which considers the temporal effect of correction and ratification, ultimately asks on what record the determination must be made.
The relevant text for this question is found in Article 60 of the Civil Procedure Act. That Article provides that where a person in whom there is a defect in litigation capacity, statutory representative authority, or the conferral of authority necessary for an act of litigation has performed an act of litigation, and the corrected party or statutory representative thereafter ratifies it, that act of litigation takes effect retroactively to the time it was performed. The subject indicated by this text is the person who performed the act of litigation bearing the defect, and that act was one performed before the person fully possessed litigation capacity or representative authority. And the condition is the case where the corrected party or statutory representative thereafter ratifies that act. Here ratification means the subsequent acceptance of the preceding act of litigation as valid.
The two stages prescribed in Article 60 confirm different circumstances. The first stage is whether the party or representative has come to hold that position and authority through the correction of the defect; the second stage is whether the person who has so come to hold them has accepted the preceding act of litigation as made for that person's own. Why must the two be distinguished? Because the Article allows retroactive effect only where the corrected party or statutory representative has ratified it, the mere fact that authority has been obtained cannot be taken to mean that an intention to ratify was also present. To maintain that distinction, the stages are determined solely on the materials recorded in the organizational articles, the representative appointment materials, the order to correct, and the instrument of ratification. Stage determinations are made only on the established record, and absent records are not filled in by conjecture.
This distinction carries a clear cost. It is because retroactive effect may impair the opposing party's procedural reliance. The opposing party may have carried forward the proceedings in the belief that B filed the lawsuit without authority, or may have responded on the premise of its invalidity, and if all those acts are later reversed into ones valid from the beginning, that preparation comes to nothing. In addition, there is the concern that subdividing defects may exclude too early matters capable of correction. If, on the ground that a single record is missing, an act is killed off even though correction and ratification have both been completed, the chance of restoring rights already given in the interval when the record was absent is lost. Correction and ratification each require their own record, and the loss of reliance cannot be made good by adopting unfounded confirmations.
What is confirmed in the synthetic scene is only that B filed a lawsuit on behalf of Organization A and did not submit the representative appointment materials at the time of filing. What the organizational articles provide, when and in what manner B was appointed, when the court issued an order to correct with what content, and whether B personally or the person who newly became representative submitted an instrument of ratification are not written in the scene. Accordingly, if the identity of the organization or the effect of the representative's appointment cannot be confirmed by the appointment materials or by the order to correct and the instrument of ratification, that stage remains undetermined. However, if the defect has been properly corrected and ratified, the pre-correction state alone does not continue to bar it. This condition alone can neither establish the effect of the preceding lawsuit nor conclude it as invalid.
The conclusion permitted by this section is narrow. Where ratification is confirmed, under Article 60 that act of litigation takes effect retroactively to the time it was performed, and this determination is made only on the record within the organizational articles, the representative appointment materials, the order to correct, and the instrument of ratification. Here, the fact that authority has been obtained and the circumstance of recording an intention to ratify must not be taken together without each being confirmed separately, nor should the retroactive effect already settled be denied on the ground that there are unconfirmed items. However, circumstances outside the scene, such as the outcome of success or failure or the result of recovery, are not determined in this determination.
5.5Circumstances That Change the Decision
There remains the concern that authority secured late and a lawsuit that was absent from the outset cannot be regarded as the same thing. In the scene where Representative B of Association A filed a suit in the association's name but the appointment materials were not submitted, the filing of the complaint by Representative B on behalf of Association A is an act of litigation performed at a time when there was a defect in the grant of representative authority. At this point it remains open whether the court may treat that act of litigation as valid, or whether it must pass through the separate route of correction.
Here, the corrected party or legal representative is the person who became the subject of the act of litigation by the correction of the defect. Ratification is the act of subsequently accepting a prior act of litigation as valid.
This provision sets the two stages apart. The first stage is to confirm whether the requirements for correction of the defect and for ratification have been satisfied, and the second stage is to determine the effect of the act after that confirmation. The prior act of litigation takes effect retroactively from the point at which the correction and ratification were confirmed.
The counterargument to this retroactive effect takes aim at the point that the other party's procedural trust may be harmed. The other party may respond in the expectation that the prior act of litigation is void on the ground of the defect in representative authority, and retroactivity that overturns that expectation shakes the predictability of the lawsuit procedure that has already unfolded. Correction is the filling of the defect in representative authority, and ratification is the expression of an intention to accept the prior act. Since both requirements must be confirmed before retroactive effect is even at issue, this counterargument does not change the conclusion.
The facts confirmed in the scene are only that Representative B filed a suit in the name of Association A and that the appointment materials were not submitted. In the absence of materials to check the effect of the representative's appointment or the identity of the association, whether the prior retroactive act becomes valid remains undetermined. If the order to correct, the ratification instrument, the association's articles, and the representative appointment materials are secured in the records, the stage-by-stage determination can then be made again. Correction and ratification merely open a legal route; they do not signify any actual result of payment, delivery, or recovery.
The conclusion this section permits is limited to the narrow distinction of recognizing effect retroactively as of the point when correction and ratification are confirmed, while not establishing on that basis that ratification also occurred. The fact that unverified materials remain does not render relief impossible; a shortage of materials merely remains undetermined.
5.6The Strongest Counterargument and the Answer
On the premise that, once a defect is lawfully corrected and ratified, the pre-correction state alone no longer continues to bar the matter, the questions this time are what the strongest counterargument attached to this conclusion is, and what line must be held in the face of that counterargument. In the scene where Representative B of Association A filed a suit in the association's name but the appointment materials were not submitted, the issue is whether the intent behind the prior act may also be concluded on the strength of circumstances that emerged only after the correction.
The provision corresponding to this question is Article 60 of the Civil Procedure Act. That provision states: "Where a person who has a defect in litigation capacity, statutory representative authority, or the grant of authority necessary for an act of litigation performs an act of litigation, and thereafter the corrected party or legal representative ratifies it, that act of litigation takes effect retroactively as of the time it was performed." Here the subject is the person who performed the act of litigation while the defect existed, the act that follows is performed by the corrected party or legal representative, and the condition is that that person ratified the prior act.
The effect prescribed by this text is clear. If a lawful ratification exists, the effect of the act of litigation relates back to the time the act was performed. However, before that effect can be recognized, it must first be established that the separate act of ratification took place. Ratification is a concept distinct from correction: correction fills the defect, whereas ratification requires an intention to take the prior act as one's own. Accordingly, the single fact that there was a correction cannot establish that the intention to ratify was also present.
The strongest counterargument to this conclusion lies in the point that retroactive effect may harm the other party's procedural trust. The other party has already responded and carried out the procedure on the basis of an act performed in the defective state; if a belated ratification turns that act back into one that was valid from the outset, the trust already formed may be shaken. The concern that subdividing defects may exclude, too early, matters capable of correction also touches upon this counterargument. This answer does not erase the disadvantage identified by the counterargument; it holds the line of not rashly recognizing retroactive effect without separately confirming the requirement of ratification.
The facts confirmed in the synthetic scene are only that Representative B of Association A filed a suit in the association's name and that the appointment materials were not submitted. The circumstance that the appointment materials were absent merely suggests the possibility that there was a defect in the representative authority; how that defect was corrected, and how the corrected party or legal representative subsequently took the prior suit, are not revealed in the scene. Whether an order to correct or a ratification instrument exists, and whether it contained an intention to ratify, cannot be established from this scene alone. Therefore, even if the fact of correction has been confirmed, the presence or absence of an intention to ratify remains undetermined.
What this section permits is the determination that, only where a lawful ratification is confirmed, that ratification relates the effect of the prior act of litigation back to the time the act was performed. By contrast, a determination that asserts on the strength of the fact of correction alone that ratification also occurred, or that fixes the pre-correction state as one that must continue to bar the matter, is not permitted by this section. Nor does it immediately convert a state of insufficient materials into one where relief is impossible; the undetermined remains undetermined.
5.7The Link to the Application and the Dispositive Part
In this scene, even if there was a defect in the grant of Representative B's representative authority, the filing of the suit is already an act of litigation that has been performed. Thus the question remains how the prior act is to be treated when the authority is later brought into place. What is asked now is at what point in time the effect of the ratification that bridges that interval reaches.
Article 60 of the Civil Procedure Act provides: "Where a person who has a defect in litigation capacity, statutory representative authority, or the grant of authority necessary for an act of litigation performs an act of litigation, and thereafter the corrected party or legal representative ratifies it, that act of litigation takes effect retroactively as of the time it was performed." (Article 60 of the Civil Procedure Act). This text presupposes that the person with the defect has already completed the act of litigation. And it governs the case in which the corrected party or legal representative has ratified it. The retroactivity of which the statutory text speaks is a manner of giving the act effect as of the time it was performed.
Applying this provision to this question, if a lawful ratification exists, the effect of the act of litigation prescribed by the statutory text relates back to the time the act was performed (Article 60 of the Civil Procedure Act). Rather than treating the complaint filed by Representative B as though it had never existed, if the corrected representative ratifies that filing, the effect reaches the time of filing. In this determination, correction and ratification must be read apart. Correction is a matter of completing what was defective, but it cannot be asserted that an intention to accept the prior act as valid is also contained within it. For the starting point of retroactive effect is not the fact of correction but the ratification of that act.
Retroactive effect may harm the other party's procedural trust. From the other party's standpoint, it may have prepared a defense on the view that the suit was filed by a person without representative authority, or may have missed the timing; if the effect is pushed back to the time the act was performed, that response is turned upside down. The concern that subdividing defects may exclude, too early, matters capable of correction also arises from the same place. Since retroactivity becomes an issue only after ratification is established, if, out of concern for the other party's trust, even the requirements of ratification are omitted from the discussion of retroactive effect, the distinction drawn above collapses.
What is confirmed in the synthetic scene is only the fact that Representative B filed a suit in the association's name without submitting the appointment materials. In the absence of materials to check the identity of the association or the effect of the representative's appointment, how the defects in litigation capacity and representative authority stood, and whether a lawful ratification occurred later, are not determined by this scene alone. If an order to correct or a ratification instrument is confirmed, the condition operates that, once the defect is lawfully corrected and ratified, the pre-correction state alone no longer continues to bar the matter. If it has not been confirmed whether that condition is satisfied, whether the act of litigation in question may be treated as valid remains undetermined.
What can be established in this section is the narrow conclusion that, where ratification is lawfully effected, the effect of that prior act of litigation relates back to the time the act was performed. A broader reading that takes correction itself as ratification, or a conclusion recognizing retroactive effect even without ratification, does not follow from here. Conversely, the fact that the requirements and timing of ratification remain unconfirmed does not mean that even that conclusion is reserved. The standard of retroactivity is the existence of ratification, and correction is merely one of the routes leading to it.
5.8The Scope This Section Undertakes
The previous section confirmed the conclusion that, if a lawful ratification exists, the effect of the act of litigation prescribed by the statutory text relates back to the time the act was performed. How, then, does this determination of retroactive effect connect with the route of the order to correct that was earlier set for defects in litigation capacity, authority of representation, and the like? In the scene where Representative B of Association A filed a suit in the association's name but the appointment materials were not submitted, it must be made clear how authority later brought into place treats the original act of litigation.
Article 60 of the Civil Procedure Act provides: "Where a person who has a defect in litigation capacity, statutory representative authority, or the grant of authority necessary for an act of litigation performs an act of litigation, and thereafter the corrected party or legal representative ratifies it, that act of litigation takes effect retroactively as of the time it was performed." (Article 60 of the Civil Procedure Act). The subject indicated by this text is the person who performed the act of litigation while the defect existed, and the act that follows is the ratification by the corrected party or legal representative.
The provision places the defective act of litigation and the subsequent ratification at separate stages, and relates the effect back only after the ratification has occurred. The reason this distinction matters is that it directly touches the premise of the previous section. For defects in litigation capacity, authority of representation, and the like, there is the route of an order to correct, and where there is a concern about harm from delay, provisional acts may also be permitted; yet that correction and provisional permission did not make the prior act valid. Only when a lawful ratification is additionally present does the effect of the act of litigation prescribed by the statutory text relate back to the time the act was performed.
The counterargument that retroactive effect may harm the other party's procedural trust is hard to disregard. The other party would have responded seeing only the appearance of matters at the time the act was performed in the defective state; if, on the strength of later circumstances, effect is said to arise from that time onward, the foundation of the procedure that has already passed is shaken. Even so, it cannot be established on the strength of correction alone that an intention to ratify was also present, and a conclusion going beyond that establishment is not permitted by this section.
The facts confirmed in the given scene are only that Representative B of Association A filed a suit in the association's name but the appointment materials were not submitted. Contrasting this fact with the conditions above, since there are no materials to check the effect of the representative's appointment, whether the act of litigation in question may be treated as valid is still undetermined. However, since the scene does not fix the existence of a ratification instrument or an order to correct, it cannot be asserted here that retroactive effect has actually arisen.
The conclusion this section permits is narrow. It is the distinction that the effect of a prior act of litigation cannot be established on the strength of correction or provisional permission alone, and that the effect of the act of litigation prescribed by the statutory text relates back to the time the act was performed only where a lawful ratification follows. What this section does not permit is asserting, on the strength of the fact of correction alone, that an intention to ratify was also present. How does the text of Article 60 of the Civil Procedure Act support this conclusion?
5.9Application of the Text of the Provisions and the Holdings of Precedents
Accepting the premise that for defects in litigation capacity, authority of representation, and the like there is the route of an order to correct, and that where there is a concern about harm from delay provisional acts may also be permitted, what remains this time is the question of fixing the scope of the grounds for determining the act of litigation of a valid party. In this scene, the materials not submitted are merely a gap in the records showing a defect in the appointment of the representative, and are not materials that establish the presence or absence of a defect or whether it was corrected. When inquiring whether the suit filed by B may be treated as a valid party's act of litigation, what should be taken as the ground of determination? The approach of taking only the text of the provision in question as that ground is examined.
The text serving as the ground of determination is limited to Article 60 of the Civil Procedure Act alone. That provision states: "Article 60 (Defects in Litigation Capacity and the Like, and Ratification) Where a person who has a defect in litigation capacity, statutory representative authority, or the grant of authority necessary for an act of litigation performs an act of litigation, and thereafter the corrected party or legal representative ratifies it, that act of litigation takes effect retroactively as of the time it was performed." (Article 60 of the Civil Procedure Act). The subject directly indicated by this text is the person with the defect; that act is an act of litigation; and the condition for the effect to arise is the ratification by the corrected party or legal representative. Other paragraphs of the provision and the requirements of separate procedures linked with this Article are not dealt with together.
Connecting this text with the conclusion fixed earlier, in determining the act of litigation of a valid party only the requirements within the scope of that text are used. Ratification means the subsequent valid acceptance of a prior act of litigation; this definition merely explains the subsequent acceptance spoken of by the text and does not newly create other requirements. Accordingly, two stages must be distinguished. One is the correction of the defect, and the other is the case in which the corrected party or legal representative has ratified the prior act. Since the text provides that effect arises retroactively as of the time of the act only in the latter case, the fact of correction and the fact of ratification must each be confirmed.
The counterargument is that retroactive effect may harm the other party's procedural trust. The concern that subdividing defects may exclude, too early, matters capable of correction also follows. The other party prepared the procedure on the basis of an act of litigation already performed; if later the effect is pushed back to the time the act was performed, the foundation of that preparation may be shaken, and if a defect capable of correction is excluded from the outset, needless waste of litigation may be invited. The reason the conclusion can be maintained without erasing this disadvantage lies in the scope prescribed by the text. Ratification is a separate declaration of intention that subsequently accepts a prior act of litigation as valid; accordingly, the fact of correction alone cannot be regarded as satisfying the requirement of ratification demanded by the text.
The fact confirmed in the synthetic scene is the single fact that Representative B of Association A filed a suit in the association's name but the appointment materials were not submitted. This fact merely suggests the possibility that there was a defect in the grant of authority necessary for an act of litigation, and confirms none of the defect, its correction, or its ratification. Whether the association's articles, the representative appointment materials, the order to correct, and the ratification instrument will be collected has not been determined. Since the scene alone cannot confirm the identity of the association or the effect of the representative's appointment, the matter remains undetermined.
The conclusion that can be drawn in this section is narrow. The ground for determining the act of litigation of a valid party is limited to the text of the provision in question; if a lawful ratification exists, the effect of the act of litigation prescribed by the statutory text relates back to the time the act was performed; and it cannot be established on the strength of correction alone that an intention to ratify was also present. Beyond this, expanding by drawing in the content of the reasons for judgment or the requirements of other paragraphs, or adding facts and figures absent from the scene to assert victory or defeat, is not permitted by this section. Leaving matters for which materials have not been confirmed as undetermined accords with the scope of the text.
5.10Fine Distinctions Within the Stage
늦게 갖추어진 권한과 처음부터 없었던 소송을 같은 것으로 볼 수는 없다는 구분이 앞 절에서 확인한 소급의 근거와 맞닿아 있다. 적법한 추인이 있으면 법문이 정한 소송행위의 효력이 행위 당시로 소급한다. 그 근거는 민사소송법 제60조의 문언이다. 이제 그 소급이 무엇에 대한 소급인지, 즉 뒤늦게 이루어진 어떤 행위가 앞선 행위를 받아들이는 일인지가 문제로 남는다. 단체 A의 대표 B가 단체 이름으로 소를 냈으나 선임자료가 제출되지 않았다는 장면에서, 나중에 대표권의 흠이 메워진다고 해서 처음의 소 제기 행위가 어떤 성격을 얻는지를 묻는다. 이 물음은 권한이 갖추어지는 시점과 그 권한이 미치는 범위를 나누어 보아야 비로소 선명해진다.
해당 법문은 그 구분의 기준을 문언으로 적시한다. 민사소송법 제60조는 "소송능력 등의 흠과 추인"이라는 제목 아래, 소송능력·법정대리권 또는 소송행위에 필요한 권한의 수여에 흠이 있는 사람이 소송행위를 한 뒤에 보정된 당사자나 법정대리인이 이를 추인한 경우에는 그 소송행위가 이를 한 때에 소급하여 효력이 생긴다고 정한다. 이 문언이 가리키는 주체는 흠을 가진 채로 행위를 한 사람이고, 행위는 소송행위이며, 조건은 그 행위 뒤에 보정된 당사자나 법정대리인이 이를 추인한 사실이다. 문언이 말하는 결과는 새 행위의 효력이 아니라 이미 있던 행위의 효력이 생기는 때를 거슬러 정하는 것이다.
여기서 추인이라는 말은 앞선 소송행위를 사후에 유효하게 받아들이는 일을 뜻한다. 이 정의에는 두 가지가 분리되어 있다. 하나는 흠이 있었던 행위를 유효한 것으로 취급할 만한 능력·대표권이 갖추어지는 것이고, 다른 하나는 그 앞선 행위를 자기 것으로 받아들이겠다는 의사가 밖으로 드러나는 것이다. 법문이 요구하는 추인은 후자의 행위이며, 전자의 보정이 끝났다는 사실만으로는 후자까지 있었다고 단정하기 어렵다. 따라서 보정과 추인은 각각 다른 판단 단계를 이루고, 이 둘을 하나로 합치지 않을 때에만 소급의 조건과 결과를 정확히 대조할 수 있다.
이 구분이 생기면 소급효가 상대방의 절차상 신뢰를 해칠 수 있다는 반론이 겨냥하는 손실이 분명해진다. 상대방은 흠이 있는 행위를 마주한 뒤에도 대응 절차를 진행해야 하고, 뒤늦은 소급으로 그동안 쌓인 절차적 기대가 흔들릴 수 있다. 흠을 세분하면 보정 가능한 사안을 지나치게 일찍 배제할 수 있다는 우려 역시 같은 자리에서 생긴다. 이 답은 반론의 불리함을 지우지 않고서도 결론을 유지한다. 보정과 추인을 구별하는 편이 상대방의 신뢰를 해치는 범위를 오히려 좁히기 때문이다. 늦게 갖추어진 권한과 추인이라는 별개의 행위를 놓치지 않는 한, 소급이 요구하는 조건을 빠뜨리지 않고 따질 수 있다.
이 판단은 합성 장면에서 정해진 사실만으로는 미확정인 부분을 남긴다. 단체 A의 대표 B가 단체 이름으로 소를 냈으나 선임자료가 제출되지 않았다는 사실은 기록해 두지만, 단체 규약·대표자 선임자료·보정명령·추인서 중 무엇이 실제로 존재하는지, 그리고 단체의 동일성이나 대표 선임의 효력을 확인할 자료가 있는지는 알 수 없다. 그 조건이 갖추어졌는지에 대한 판단은 이 장면으로 확정되지 않는다.
이 절에서 확인할 수 있는 것은 추인이 앞선 소송행위를 사후에 유효하게 받아들이는 일이라는 뜻이며, 적법한 추인이 있으면 법문이 정한 소송행위의 효력이 행위 당시로 소급한다는 점이다(민사소송법 제60조). 여기서 더 나아가 미확인 기록의 유무만으로 승패나 회수 결과를 단정하거나, 같은 장면에서 소 제기의 나머지 쟁점을 함께 다루는 것은 이 절이 다루지 않는다. 당사자의 유효한 소송행위의 작동과 차단과 미확정은 어떻게 구별되는가?
5.11Synthesis of Effectiveness, Blockage, and Undetermination
앞 절에서 추인은 앞선 소송행위를 사후에 유효하게 받아들이는 일이라고 했고, 적법한 추인이 있으면 법문이 정한 소송행위의 효력이 행위 당시로 소급한다고 보았다. 이 결론을 전제로 지금 다룰 물음은 보정 뒤 추인은 앞선 행위에 어떤 효력을 주는가이다. 여기에 답하려면 세 가지 상태, 즉 그 소송행위가 작동하는 경우와 막히는 경우와 확인 자료가 없어 미확정으로 남는 경우를 구별해야 한다.
이 문언은 흠이 있는 사람이 먼저 소송행위를 한 뒤에, 보정된 당사자나 법정대리인이 추인할 것을 전제로 삼는다.
이 문언과 앞서 정리한 구별을 잇기 때문에, 이 절은 다음과 같이 판단한다. 당사자능력·소송능력·대표권을 갖추거나 법정 보정·추인을 마친 경우에는 그 소송행위는 작동한다. 반면 필요한 능력 또는 대표권의 흠이 남아 해당 소송행위를 유효한 것으로 취급할 수 없는 경우에는 막힌다. 두 경우를 나누는 까닭은 능력의 흠 자체와 그 흠이 적법하게 메워진 결과가 서로 다른 단계에 속하기 때문이다. 앞 단계를 그대로 두고 뒤 단계의 확정을 앞당겨 읽을 수는 없다.
이 구별에는 반론이 붙는다. 소급효가 상대방의 절차상 신뢰를 해칠 수 있다는 점이 그 반론이다. 그 반론은 소급에 따라 상대방이 그동안 쌓아 온 절차상 기대가 뒤집힐 수 있다는 불편과 손실을 구체적으로 겨냥한다. 또한 흠을 세분하면 보정 가능한 사안을 지나치게 일찍 배제할 수 있다는 우려도 함께 붙는다. 그에 대한 답은 분명하다. 따라서 소급효의 불리한 부분을 지우지 않으면서도, 보정이라는 사실 하나로 추인까지 마무리되었다고 단정하지 않는 범위에서 결론을 유지한다.
합성 장면은, 단체 A의 대표 B가 단체 이름으로 소를 냈으나 선임자료가 제출되지 않았다는 것이다. 이 장면과 앞의 조건을 대조하면, B가 단체 이름으로 소를 낸 시점에 대표권을 뒷받침할 선임자료가 기록상 확인되지 않는다. 다만 이 절의 소송행위 단계에서 지금 확인하는 것은 필요한 능력 또는 대표권의 흠이 남아 있는가, 그리고 법정 보정·추인이 마무리되었는가이다. B가 실제로 단체 A의 대표로 적법하게 선임되었는지, 나중에 제출된 자료가 단체 A의 동일성과 대표 선임의 효력을 증명하는지는 이 장면만으로 확정할 수 없다. 따라서 이 절은 이 사안을 미확정으로 남긴다.
따라서 이 절이 허용하는 결론은 좁다. 당사자능력·소송능력·대표권을 갖추거나 법정 보정·추인을 마친 경우에 그 소송행위가 작동하고, 필요한 능력 또는 대표권의 흠이 남아 유효한 것으로 취급할 수 없는 경우에 막힌다는 구별까지 확인할 뿐이다. 단체의 동일성이나 대표 선임의 효력을 확인할 자료가 없는 경우를 곧바로 차단으로 확정하거나, 보정만으로 추인 의사까지 있었다고 단정하는 것은 이 절이 허용하지 않는 결론이다. 미확인 항목이 남아 있어도 이미 정해진 이 좁은 결론은 유지한다.
5.12Conclusion Carried Over to the Next Section
앞 단계에서 소송능력·대리권 등의 흠에는 보정명령의 경로가 있으며, 지연 손해 우려가 있으면 일시적 행위도 허용될 수 있다는 점만 연결점으로 삼는다. 그 전제 아래 이번 절의 물음은 하나로 좁아진다. 바로 그 시간적 효과를 허용할 것인지 여부다.
이 물음에 답하는 원문은 대한민국 민사소송법 제60조이다. 여기서 주체는 흠을 가진 채 소송행위를 한 사람이고, 행위는 능력·대리권의 수여에 흠이 있었던 앞선 소송행위다.
조건은 크게 둘로 갈린다. 하나는 그 앞선 소송행위가 뒤이어 보정되거나 추인되는 절차를 거쳤다는 것이고, 다른 하나는 보정된 당사자나 법정대리인이 그 행위를 유효하게 받아들이는 추인을 했다는 점이다. 이 두 단계를 구분해야 하는 까닭은, 적법한 추인이 있으면 법문이 정한 소송행위의 효력이 행위 당시로 소급하기 때문이다. 흠을 고친 것과 그 고침이 앞선 행위까지 유효하게 채택했는지의 문제는 같은 질문이 아니다.
상대방은 보정 전 상태만 보고 행동했을 수 있는데, 그 사이의 소송행위가 처음부터 유효했던 것처럼 되돌아가면 그 판단 기반이 흔들린다. 보정 절차가 열렸다는 사실만으로는 법문이 요구한 추인에 이르렀다고 단정할 수 없고, 그 간극이 남아 있는 한 보정 전 상태를 그대로 유효로 돌릴 수도 없다.
이 장면에 이 조건을 대조하면, 단체 A의 대표 B가 단체 이름으로 소를 냈으나 선임자료가 제출되지 않았다는 상황에서 대표권의 흠이 문제 된다. 단체의 동일성이나 대표 선임의 효력을 확인할 자료가 없으므로 B가 낸 소가 그 자체로 유효한 당사자의 소송행위였는지는 미확정이다. 흠이 적법하게 보정·추인되면 보정 전 상태만으로 계속 차단되지는 않지만, 여기서 실제로 추인이 있었는지는 이 장면만으로 판정할 수 없다.
이 절에서 허용되는 결론은 좁다. 적법한 추인이 있으면 법문이 정한 소송행위의 효력이 행위 당시로 소급하고, 그 추인의 존재는 보정만으로 확정되지 않는다. 이 절에서 허용하지 않는 것은 보정 절차가 열렸다는 사실만으로 앞선 행위가 처음부터 유효였다고 보는 해석과, 흠의 보정과 당사자 교체를 같은 문제로 취급하는 읽기다. 흠의 보정과 당사자 교체를 어떻게 가르는가?