Summary
The selected party's conduct of the litigation can be explained only where there is a common interest and a lawful selection.
3.1The Standard by Which the Path Opens
The mere circumstance that one has suffered the same harm does not make anyone a representative for all. Rights strictly personal to the holder are excluded, and for exercise before the due date the permission prescribed by law and the exception for preservative measures are applied together. On this premise, the question here is what basis must first be in place for the conduct of a lawsuit exercising another's rights in that other's stead to operate in practice. Whether shared interest alone automatically generates representative authority, or whether, in addition to that interest, a separate procedure such as selection is required, is decided at this point. This question asks after the source of the qualification to exercise a right, and is separated from the scope of rights capable of being exercised by subrogation and from questions of time limits.
The statutory provision corresponding to this question is Article 53 of the Civil Procedure Act. Its paragraph (1) provides: "Where several persons who have a common interest do not fall under the provisions of Article 52, they may select, from among themselves, one or more persons to become parties on behalf of all, or may change them." The subject dealt with by this wording is several persons who have a common interest, and the act is the selecting or changing, from among them, of the person or persons who will become a party on behalf of all. As conditions, it is required that they not fall under the provisions of Article 52 and that an intent to select exist.
The foregoing wording and the conclusion the author draws in this section must be read together. A common interest is only the starting point of selection and does not by itself produce the authority to conduct a lawsuit; only when a lawful selection is added can the conduct of a lawsuit by the selected party be explained. Just as, in the case of subrogation, a claim to be preserved and a need for preservation are required, here too the basis for the conduct must be established separately. If the two requirements are bundled into one, it does not become clear who conducts the lawsuit in what capacity; accordingly, the facts of the common interest and the legal relationship of selection are distinguished and judged separately.
The strongest counterargument targets the point that requiring an intent to select case by case would in practice block the collective exercise of small rights. If the many scattered right holders must gather each of their intents before a representative can be appointed, the concern is that the cost of collectively exercising rights that are individually of little value may exceed the entitlement itself. This inconvenience is not small in practice. Even so, support without a written selection form cannot be equated with a legal selection. An expression of support or sympathy cannot take the place of the legal act of an intent to select, and if that distinction is blurred, it becomes in the end unclear who became a party on behalf of all.
In the synthetic scene, creditor A seeks to exercise the rights of debtor B but has not separately advanced a basis for its own claim and the need for preservation. On this scene alone, the basis leading to a selected party has not been made clear, and whether there is a common interest and whether selection occurred are likewise not recorded. Which of the materials of the claim to be preserved, the written selection form, the succession materials, and the application for participation was submitted is likewise not an established fact, and remains undetermined. If, however, one judgment condition is changed, then if the existence of the claim to be preserved is denied, the conclusion on the standing in a subrogation lawsuit changes. This contrast is not a fact that actually occurred but a judgment condition for the case in which the basis collapses.
Accordingly, the conclusion permitted by this section is limited to cases in which a common interest and a lawful selection are recognized, in which event the conduct of the lawsuit by the selected party can be explained; conversely, it does not permit extending that basis to cases in which even the common interest or the selection is unconfirmed. Because this conclusion is a determination concerning the source of the qualification to exercise another's rights in that other's stead, it has not thereby also settled the separate requirements of subrogation, namely the claim to be preserved and the need for preservation. Support without a written selection form does not function as a legal selection, and the mere factual consensus that one may represent rights does not serve as the basis for the authority to conduct a lawsuit.
3.2The Conditions That Block Relief
At the previous stage the premise was accepted that rights strictly personal to the holder are excluded and that for exercise before the due date the permission prescribed by law and the exception for preservative measures are applied together, and this is not argued again. The analysis now examines under what conditions the qualification to conduct another's rights is blocked, and whether, in the scene where creditor A seeks to exercise the rights of debtor B but has not separately advanced a basis for its own claim and the need for preservation, shared interest alone automatically generates representative authority.
On this question, Article 53 of the Civil Procedure Act fixes the relationship between common interest and selection as follows: "(1) Where several persons who have a common interest do not fall under the provisions of Article 52, they may select, from among themselves, one or more persons to become parties on behalf of all, or may change them." This wording sets the subject of selection as several persons who have a common interest, the act as the selection, from among them, of the person who will become a party on behalf of all, and the condition as the case of not falling under Article 52. Here the selected party means the party selected by those with a common interest for the lawsuit.
This wording states that a common interest alone is not sufficient to explain the conduct of a lawsuit by the selected party. A common interest constitutes the range of persons who may select, but the separate fact that a person to become a party on behalf of all was selected from among them is required. These are different stages of judgment. The former defines the group of qualified persons and the latter designates the person to represent from within that group, so one cannot take the place of the other. If any one of the statutory requirements is not satisfied—that is, if the claim to be preserved of the subrogating party is not recognized, or if there is no statutory ground for litigating on behalf of another—the avenue of relief is closed.
The counterargument aims at a clear loss. Requiring an intent to select case by case makes the collective exercise of small rights difficult. The more numerous the interested parties and the smaller each one's share, the more the trouble of collecting written selection forms may swallow up the substance of the right. But the author's answer does not change. Support for which no underlying materials of selection remain does not itself show selection by those with a common interest, and thus the requirements cannot be replaced by a presumption made for convenience. The difficulty of collective protection of rights that the counterargument points out cannot serve as grounds for relaxing the requirements.
In the synthetic scene, creditor A seeks to exercise the rights of debtor B but has not separately advanced a basis for its own claim and the need for preservation. What A submitted has not been specified as any one among those. Without materials on the claim to be preserved, the basis for subrogation is not confirmed; without a written selection form, the basis for conduct by way of selection is not confirmed. If it is confirmed that the existence of the claim to be preserved is denied, the conclusion on the standing in a subrogation lawsuit changes. However, because the legal relationship between A and B is not made clear in the scene, the nature of that relationship cannot be determined. Whether the right has passed over cannot be judged on this scene alone either.
The conclusion permitted is narrow. Only where there is a common interest and a lawful selection can the conduct of the lawsuit by the selected party be explained, and if the materials underlying the selection are not confirmed, that explanation stops here. One cannot say that shared interest alone automatically generates representative authority, nor can support without a written selection form be put in the place of selection. However, a shortage of materials cannot immediately be read as an inability to obtain relief, and the actual outcome of winning or losing, or the results of recovery, are not determined here.
3.3The Boundary That Remains When There Is No Data
In such a scene, when someone seeks to exercise another's rights in that other's stead or when one person seeks to conduct the rights of many, the question is whether a common interest alone gives that person representative authority. That is, it must be judged separately whether the circumstance of a common interest by itself creates the group's representative authority without the selection procedure that the law requires. Otherwise, the fact of shared interest and the basis for the authority to conduct become entangled, resulting in recognizing as lawful even a conduct whose basis has not been confirmed.
As the wording corresponding to this question, Article 53 of the Civil Procedure Act provides in paragraph (1) that "where several persons who have a common interest do not fall under the provisions of Article 52, they may select, from among themselves, one or more persons to become parties on behalf of all, or may change them," and in paragraph (2) that "where, after a lawsuit is pending in court, a party is changed pursuant to the provisions of paragraph (1), the previous party is deemed to have withdrawn from the lawsuit as a matter of course." The subject designated by this wording is several persons who have a common interest, the act is the selecting or changing, from among them, of the person who will become a party on behalf of all, and paragraph (2) prescribes the effect of withdrawal that follows a change after the lawsuit becomes pending.
The key that connects this wording with the conclusion of this section is that the existence of a common interest and the existence of a lawful selection are different stages of judgment. The former is the fact that several persons stand under the same interest, and the latter is the ground that a particular person among them has received the qualification to become a party on behalf of all. Only by distinguishing these two can the source of the authority to conduct be found in the selection prescribed by the text, and only where there is a common interest and a lawful selection can the conduct of a lawsuit by the selected party be explained. To sustain the definition of the party selected by those with a common interest for the lawsuit, the basis for the authority to conduct must be confirmed in the selection procedure. Where no materials remain and the legal relationship between the right holder and the person conducting the lawsuit is not made clear, matters for which the materials of judgment are not specified are left undetermined, distinguished from impossibility.
An argument against this standard aims at the point that requiring an intent to select case by case increases the burden of collectively exercising small rights and leads to de facto abandonment. This argument stresses the loss and inconvenience that, for rights that are small or dispersed, it is troublesome for each interested party to go through the procedure of expressing an intent to select, with the result that collective and subrogation-based protection of rights becomes difficult. Because the text does not make shared interest alone create the authority to conduct but requires an act of selection, the circumstance that there was support or agreement does not itself become the basis for selection. This answer does not erase the inconvenience of collective exercise that the counterargument points out; it only makes clear the boundary that such inconvenience cannot be taken as grounds for replacing the selection requirements prescribed by law.
In this scene, creditor A seeks to exercise the rights of debtor B but has not separately advanced a basis for its own claim and the need for preservation, and, in addition, the materials supporting an intent to select are not specified. This state of facts is not sufficient to confirm both the common interest and the act of selection that the text requires. Accordingly, no definitive conclusion can be reached as to whether A may conduct B's rights, and to the extent that the legal relationship between the right holder and the person conducting the lawsuit is not made clear, the matter remains undetermined. Meanwhile, if it is confirmed that the existence of the claim to be preserved is denied, this means only that the direction of the conclusion may change. On this scene alone it cannot be confirmed whether the claim to be preserved and the need for preservation of subrogation, or the basis for the authority to conduct a lawsuit by way of selection or succession, is recognized.
The conclusion permitted by this section is that the conduct of a lawsuit by the selected party can be explained within the range in which a common interest and a lawful selection are confirmed, and that shared interest alone does not automatically generate representative authority. At the same time, undetermined is different from impossible, so matters for which the materials of judgment are not specified due to a lack of materials cannot be pronounced to be incapable of being exercised. Taking support without a written selection form as the basis for a legal selection is a conclusion this section does not permit, and unconfirmed matters cannot be filled in with confirmed ones.
3.4The Records Needed for Determination
In this scene, the question is whether a common interest automatically creates representative authority. This question, which asks after the source of the authority to conduct a lawsuit, examines separately the conditions under which the authority arises and whether those conditions remain in the records.
The relevant wording is Article 53 of the Civil Procedure Act. Paragraph (1) provides that where several persons who have a common interest do not fall under the provisions of Article 52, they may select, from among themselves, one or more persons to become parties on behalf of all, or may change them. Here, several persons who have a common interest are the subject, the selection of the person who will become a party on behalf of all from among them is the act, and the case of not falling under Article 52 is the condition. This Article does not deal with the requirements of the representative lawsuit under Article 52 itself.
Connecting this wording with the conclusion of this section reveals that the act of selection is the basis for the authority to conduct a lawsuit. The circumstance of a common interest and the act of selection are separate stages of judgment, and the former alone cannot take the place of the latter. Accordingly, adjudication is made on the recorded materials alone, and missing records are not filled in by presumption. The selected party means the party selected by those with a common interest for the lawsuit, and this definition denotes a status that arises only as a result of selection.
The strongest counterargument lies in the point that requiring an intent to select case by case makes the collective exercise of small rights difficult. Where small interests are dispersed, requiring each to express an intent to select means that procedural costs swallow up the right, and the loss is that collective and subrogation-based protection of rights may in fact be blocked. Even while acknowledging the practical inconvenience the counterargument points out, if shared interest alone is regarded as generating representative authority, the requirement of selection itself becomes an empty place.
What is confirmed in this scene is only the fact that creditor A seeks to exercise the rights of debtor B, and the fact that A has not separately advanced a basis for its own claim and the need for preservation. Which among the designated records—the materials of the claim to be preserved, the written selection form, the succession materials, and the application for participation—exists, and what materials are contained therein, is not made clear. Accordingly, whether a common interest and a lawful selection are recognized together cannot be determined on this scene alone and remains undetermined. If it is confirmed that the existence of the claim to be preserved is denied, the conclusion on the standing in a subrogation lawsuit changes, but on the remaining records it is not adjudicated.
The conclusion permitted by this section is that the conduct of a lawsuit by the selected party can be explained only where a common interest and a lawful selection exist together, and that this adjudication is made solely on the materials contained in the designated records. A conclusion that shared interest alone automatically generates representative authority is not permitted, and neither is a judgment equating support without a written selection form with a legal selection. Conversely, pronouncing at once, from the state in which no records yet exist, that relief is impossible is likewise not a conclusion at this stage.
3.5Circumstances That Change the Decision
As confirmed above, a common interest alone does not of itself give rise to representative authority. Yet in a subrogation lawsuit, creditor A seeks to exercise debtor B's right, but has separately set out no basis for his own claim or for the need for preservation. In this scene, the questions are whether a common interest of itself creates representative authority, and what change overturns the determination reached at the existing stage.
Article 53 of the Civil Procedure Act provides that where several persons having a common interest do not fall under the provisions of Article 52, they may select from among themselves one or more persons to become a party for all of them, or may change such selection. This text sets the persons making the selection as those having a common interest, the act as the selection of a party, and the condition as not falling under Article 52.
The text of Article 53 is joined to the preceding conclusion. A common interest is merely a premise of the selection, and only where there is an act of selection can the selected party's conduct of the lawsuit be explained. The reason for separating the two elements is that the former accounts for the collective character of the interest, while the latter accounts for the basis of the authority to represent that group. Under this distinction, if the existence of the claim to be preserved is denied, the conclusion as to the standing in a subrogation lawsuit changes.
The counterargument that requiring an expression of selection intent one by one makes the collective exercise of small rights difficult targets a real practical inconvenience. Where right holders are numerous and each individual right is small, the burden of collecting written selection forms separately may in fact block collective and subrogation-based protection of rights. Support and selection differ in their basis and effect; accordingly, even while acknowledging the inconvenience the counterargument identifies, it does not change the legal basis of representative authority.
This fact alone cannot establish whether the subrogating party's claim to be preserved is recognized, or whether there is a statutory basis for litigating for another, nor, conversely, whether the basis for the right to conduct the lawsuit by virtue of selection or succession is recognized. Because the legal relationship between the right holder and the person conducting the lawsuit has not been clarified, this item remains undetermined.
What this section permits extends only so far as explaining the selected party's conduct of the lawsuit where there is a common interest and a lawful selection. It is not permitted to regard representative authority as arising from a common interest alone, or to treat support without a written selection form as a legal selection. If the existence of the claim to be preserved is denied, the conclusion as to the standing in a subrogation lawsuit changes.
3.6The Strongest Counterargument and the Answer
As examined above, if the existence of the claim to be preserved is denied the conclusion as to the standing in a subrogation lawsuit changes; what now remains is whether a common interest alone gives rise to representative authority. In this scene, if A is to go forward and conduct the lawsuit on behalf of numerous right holders, the source of that authority must be clear. Therefore, the circumstance of having suffered the same harm and the authority to lead the lawsuit must be treated as different things.
The text that draws that distinction is found in Article 53 of the Civil Procedure Act. Article 53 provides that where several persons having a common interest do not fall under the provisions of Article 52, they may select from among themselves one or more persons to become a party for all of them, or may change such selection. It further adds that where, after the lawsuit is pending before the court, the party is changed pursuant to paragraph (1), the previous party is deemed to have withdrawn from the lawsuit as a matter of course. This text indicates that the persons who select are those having a common interest, that the object of the selection is the person who will become a party for all of them, and that the timing of the selection is not limited to before or after the lawsuit.
Connecting this text with the conclusion of this section, the selected party's conduct of the lawsuit can be explained only where a common interest and a lawful selection are present together. A common interest gives those people a reason to represent all of them, but it does not of itself create the authority to represent as well. The authority comes from the selection as to who among them will become a party for all of them. Accordingly, if the two elements are merged into one, it cannot be distinguished who conducts the lawsuit and in what capacity.
The strongest of the counterarguments targets the inconvenience arising from precisely this distinction. Gathering the intent of each participant costs money, and if some drop out in the process, the remaining persons find it difficult to continue the lawsuit—a loss that follows. The smaller and more dispersed the group of rights, the greater that burden. Support and selection are not of equal weight, and the difficulty the counterargument identifies remains a threshold of the system.
The facts confirmed in the synthetic scene are only that A seeks to exercise B's right while separately setting out no basis for his own claim or for the need for preservation. The circumstance that A was selected by those having a common interest is not part of the scene. Nor is any material designated indicating that they chose A as the person to become a party for all of them. Accordingly, on this scene alone the existence of a selection is not established, and whether there is a common interest is not clarified either.
The conclusion this section permits is the narrow determination that a common interest and a lawful selection must be present together to explain the selected party's conduct of the lawsuit. Conversely, the conclusion that a common interest alone gives rise to representative authority, and that support without a written selection form immediately becomes a legal selection, is not permitted. Does a common interest of itself create representative authority?
3.7The Link to the Application and the Dispositive Part
The conclusion of the preceding section should be taken in a single sentence: support without a written selection form cannot be equated with a legal selection. In a scene of this kind, the question is whether a common interest alone gives rise to representative authority.
To answer this question, one must first read the provision stipulating that several persons having a common interest may select or change the selection. Article 53 of the Civil Procedure Act stipulates that where several persons having a common interest do not fall under the provisions of Article 52, they may select from among themselves one or more persons to become a party for all of them, or may change such selection. This text sets the persons making the selection as those having a common interest, the act as the selection and change of a party, and the condition as not falling under Article 52.
What the text of the above provision presupposes is the fact that there are several persons having a common interest and the fact that a selection was made from among them. In this definition, a common interest and a lawful selection are separate elements. The former denotes the range of persons who may make the selection, and the latter denotes the basis of the authority that those persons actually chose a representative. With only one of the two elements, the selected party's conduct of the lawsuit cannot be explained.
The inconvenience that follows from dividing them in this way is plain. Persons who share a right cannot appoint a representative without going through the procedure of gathering each one's intent, and in the meantime they may miss the occasion for exercising the right. Support merely confirms the intent to select and does not substitute for the act of selection itself.
In the synthetic scene, the facts relevant to this question are that A seeks to exercise B's right, and that A has separately set out no basis for his own claim or for the need for preservation. On this scene alone it is not confirmed that several persons having a common interest with respect to B's right selected A. Because the legal relationship between A and B has not been clarified, the right to conduct the lawsuit by virtue of selection remains undetermined. In the case of subrogation alone, if the existence of the claim to be preserved is denied, the conclusion as to the standing in a subrogation lawsuit changes.
The conclusion this section permits is the determination that a common interest and a lawful selection must be present to explain the selected party's conduct of the lawsuit. What is not permitted is the interpretation that a common interest alone gives rise to representative authority as a matter of course, or the interpretation that a selection occurred on the basis of support or silence alone. Nor is permitted a reading that fills the circumstances left undetermined with established facts.
3.8The Scope This Section Undertakes
It was confirmed earlier that the existence of a common interest and the arising of representative authority are different questions. What this section now asks is the question whether, where the person holding the right and the person actually conducting the lawsuit are separate, the relief returns to the right holder, and the question how far the scope covered by this section extends. The circumstance of having suffered the same harm alone does not give anyone, as a matter of course, the qualification to litigate for another, and a separate basis for the right of conduct must be provided. This section sets out what that basis is, and explains for whom the relief can be said to arrive once that basis is in place.
Article 53 (Selected Party) (1) Where several persons having a common interest do not fall under the provisions of Article 52, they may select from among themselves one or more persons to become a party for all of them, or may change such selection. This text sets the persons making the selection as the several persons having a common interest, the act as the selection of one or more persons from among them, and the result as the qualification to become a party for all of them. It means that representative authority does not arise from a common interest alone, but that the selected party is determined only where there is an act of selection by those having the common interest. The provision does not extend to issues of other requirements or the method of selection.
Connecting this text with the conclusion of this section, it becomes clear that a common interest and a lawful selection are two different elements required to explain the selected party's conduct of the lawsuit. A common interest is the starting point that determines the object and qualification of the selection, and the selection is the act of actually designating, from among those having the common interest, the person who will become a party for all of them. Only by examining these two steps together can one say that relief reaches the right holder even where the right holder and the person conducting the lawsuit differ. Recognizing representative authority on the basis of a common interest alone, or holding that the qualification to conduct exists without a selection, is a determination that goes beyond the structure set by the text.
The strongest of the counterarguments targets procedure costs and the practical difficulty of the collective exercise of rights. If an expression of selection intent is required one by one, numerous persons holding small rights must each respond to the selection, so the collective exercise of those rights becomes practically difficult. The concern that moving toward requiring direct participation by right holders may block collective and subrogation-based protection of rights points in the same direction. Even so, the problem this counterargument cannot solve is that, the moment support and selection are treated as the same, the textual element of the selection by those having a common interest disappears. The inconvenience entailed in gathering the intent to select is acknowledged, but on the strength of that inconvenience the element of legal selection cannot be erased.
Returning to the synthetic scene, creditor A seeks to exercise debtor B's right, but has separately set out no basis for his own claim or for the need for preservation. In this scene A appears as a person seeking to exercise another's right, and B appears as the person holding that right, while whether those having a common interest made the selection—which is necessary for a determination regarding the selected party—does not appear in the scene. Accordingly, on this scene alone one cannot determine whether the basis for the conduct of the lawsuit by virtue of selection is recognized. The mere circumstance that A has separately presented no basis for his own claim or for the need for preservation indicates that the separate route of subrogation's claim to be preserved and need for preservation cannot be confirmed. Where the legal relationship between the right holder and the person conducting the lawsuit has not been clarified, the determination must be left undetermined.
The conclusion this section permits is limited to the narrow determination that a common interest and a lawful selection must be present to explain the selected party's conduct of the lawsuit. What is not permitted is the determination that a common interest alone gives rise to representative authority, or the determination that equates support without a written selection form with a legal selection.
3.9Application of the Text of the Provisions and the Holdings of Precedents
Having dealt with the questions of common interest and selection at the previous stage, this section carries over only the point that a common interest alone does not of itself generate representative authority. Here the question is not the conduct of the lawsuit that exercises another's right, but how far the text of the relevant provision illuminates that conduct. In this scene, the scope of application of the text is narrowed first.
The relevant original text for this question is Article 53 of the Civil Procedure Act. Its text provides that "Where several persons having a common interest do not fall under the provisions of Article 52, they may select from among themselves one or more persons to become a party for all of them, or may change such selection." The actor the text denotes is several persons having a common interest, and the act is the selection or change of the person from among them who will become a party for all of them. The condition is the case of not falling under Article 52. Paragraph (2) of the same Article adds that where the party is changed after the lawsuit becomes pending, the previous party is deemed to have withdrawn from the lawsuit as a matter of course, but the question of this section remains confined to the application of the text on selection. The grounds of the judgment are not drawn into the interpretation of this text.
The link joining this text with the conclusion of this section is the act of selection. Only the text of the relevant original provision is used as the basis for determining the conduct of the lawsuit concerning another's right, and only the text within the scope of the relevant original provision is applied. The point at which their bases diverge is between a person seeking to exercise another's right putting himself forward, and a party selected by those having a common interest conducting the lawsuit for all of them. The former conduct is not a place where the text of this provision is used; only the latter conduct is placed under the textual conditions of a common interest and a lawful selection. Adding support without a written selection form does not make it the same place.
The inconvenience this narrow application targets is plain. If an expression of selection intent is required one by one, the loss remains that numerous persons, each holding a small right, find it difficult to exercise their rights collectively unless they bear the cost and trouble. Even so, support without a written selection form cannot be equated with a legal selection. For no basis can be found in the relevant text that support or concurrence substitutes for the act required by the text on selection. Without erasing the difficulty of collective protection of rights that the counterargument identifies, the application of the text is limited to a determination concerning the conduct of the selected party.
The facts confirmed in this scene are only that creditor A seeks to exercise debtor B's right, and that he has separately set out no basis for his own claim or for the need for preservation. The facts that those having a common interest selected A for all of them, or that a written selection form was submitted, are not part of the scene. Accordingly, whether A's conduct of the lawsuit can be explained by the text of this provision remains undetermined. Even so, if one condition of the determination is changed: if the existence of the claim to be preserved is denied, the conclusion as to the standing in a subrogation lawsuit changes. On the record, the materials to be examined are fixed as the claim-to-be-preserved materials, the written selection form, the succession materials, and the application to participate, and no year or amount absent from the scene is filled in.
The conclusion permitted in this section is that a common interest and a lawful selection must be present to explain the selected party's conduct of the lawsuit, and that this explanation holds only within the scope of the relevant text. The conclusions not permitted are to regard representative authority as arising from the circumstance of having suffered the same harm alone, and to treat support without a written selection form as the same as a legal selection.
3.10Fine Distinctions Within the Stage
공동 이해관계인 가운데 일부가 나머지를 위하여 소송을 수행하려 할 때, 그 대표 권한은 피해를 함께 입었다는 사정만으로 저절로 생기는 것이 아니다. 앞 절이 정리한 일신전속권의 제외와 기한 전 행사의 예외는 그대로 전제한 채, 남의 권리에 대한 소송수행 안에서 다시 나누어 판정할 부분이 무엇인지 살핀다.
민사소송법 제53조는 "①공동의 이해관계를 가진 여러 사람이 제52조의 규정에 해당되지 아니하는 경우에는, 이들은 그 가운데에서 모두를 위하여 당사자가 될 한 사람 또는 여러 사람을 선정하거나 이를 바꿀 수 있다."고 정한다. 이 문언은 선정의 주체를 공동 이해관계를 가진 여러 사람으로, 선정의 대상을 그 가운데에서 모두를 위하여 당사자가 될 한 사람 또는 여러 사람으로, 선정의 시기를 소송 전후를 가리지 않고 가능하게 하여 정해 둔다.
이 정의가 요구하는 두 요소, 즉 공동 이해관계와 적법한 선정이 함께 갖추어져야 선정당사자의 소송수행을 설명할 수 있다. 앞 단계의 결론을 받아 선정의 근거가 없는 수행과 선정에 따른 수행을 나누는 까닭은, 전자를 후자의 조건에 끼워 넣으면 정해 둔 요건이 실질적으로 비워지기 때문이다.
그럼에도 불구하고 선정서 없는 지지를 법적 선정과 동일시할 수는 없다. 저자는 이 경계를 지키며, 반론이 지적한 집단적 행사의 어려움을 해소할 근거가 따로 정해지지 않는 한 선정의 요건을 완화하지 않는다.
이 사실만으로는 대위의 피보전채권과 보전 필요, 그리고 선정·승계에 따른 소송수행권의 근거 가운데 어느 것에도 이르지 못하므로 작동하는 경우 조건의 충족 여부는 미확정으로 남는다. 만약 피보전채권의 존재가 부정되는 것으로 확인되면 대위소송의 적격에 관한 결론은 달라지며, 반대로 권리자와 수행자의 법률관계가 밝혀지지 않은 경우에는 미확정 상태가 유지된다.
이 절이 허용하는 결론은 공동 이해관계와 적법한 선정이 선정당사자의 소송수행을 뒷받침한다는 판단이며, 선정서 없는 지지를 법적 선정과 동일시하는 판단은 허용하지 않는다.
3.11Synthesis of Effectiveness, Blockage, and Undetermination
공동 이해관계인 가운데 한 사람이 다른 이들의 권리를 대신하여 소송을 수행하려 할 때, 그 대표 권한이 이해관계의 존재만으로 저절로 생기는지가 여기서 다루는 물음이다. 남의 권리에 대한 소송수행이 실제 효과를 내는지, 막히는지, 아니면 아직 판단을 유보해야 하는지를 가르는 기준을 이 물음에서 찾는다.
민사소송법 제53조는 선정의 요건과 방식을 다음과 같이 정한다. "제53조(선정당사자) ①공동의 이해관계를 가진 여러 사람이 제52조의 규정에 해당되지 아니하는 경우에는, 이들은 그 가운데에서 모두를 위하여 당사자가 될 한 사람 또는 여러 사람을 선정하거나 이를 바꿀 수 있다." 이 문언은 선정의 주체를 공동 이해관계를 가진 여러 사람으로, 선정의 대상을 그 가운데의 한 사람 또는 여러 사람으로 정한다.
이 문언과 이 절의 결론을 잇는다면, 소송수행권이 열리는 경우와 막히는 경우를 나누는 척도는 대표 권한의 근거가 서류로 확인되는지에 있다. 대위의 경우 피보전채권과 보전 필요, 선정에 따른 수행의 경우 공동 이해관계와 적법한 선정, 승계에 따른 수행의 경우 승계 자료가 각각 그 근거다. 이 근거들이 인정되면 수행이 열리고, 대위자의 피보전채권이 인정되지 않거나 타인을 위하여 소송할 법정 근거가 없으면 수행이 막힌다. 두 판단은 같은 것이 아니며, 전자는 대리할 자격의 유무, 후자는 그 자격이 이미 무너졌는지를 묻는다.
가장 강한 반론은 집단적 권리 행사의 비효율을 겨눈다. 작은 권리를 가진 사람이 여럿일 때 일일이 선정 의사를 요구하면 그 권리를 모아 행사하기 어렵고, 그 결과 보호받아야 할 이익이 사라진다는 것이다. 이러한 불편을 부정하지 않더라도, 법적 선정의 요건을 무너뜨려 선정서 없는 지지를 법적 선정과 동일시할 수는 없다. 제53조 제2항은 소송 계속 뒤의 당사자 변경 효과까지 법이 정해 둔 것으로, 선정의 형식과 효과는 그대로 두는 쪽이 문언에 맞는다.
이 장면만으로는 대위의 피보전채권과 보전 필요가 인정된다고 볼 수 없다. 나아가 A와 B 사이에 공동 이해관계가 있는지, 선정서가 있는지, 승계 자료가 있는지, 참가신청이 있는지는 장면에 드러나지 않았다. 다만 피보전채권 자료·선정서·승계 자료·참가신청 가운데 무엇이 있는지는 확인되지 않았으므로, 수행의 개시 여부는 미확정으로 남는다. 권리자와 수행자의 법률관계가 밝혀지지 않았기 때문이다.
이 절이 허용하는 결론은, 공동 이해관계와 적법한 선정이라는 근거가 함께 확인될 때 선정당사자에 의한 소송수행이 열리고, 그 근거가 없거나 피보전채권이 부정되면 수행이 막힌다는 구별이다. 그렇다고 공동 이해관계만으로 대표 권한이 생긴다거나, 소송수행권의 판단이 그 권리의 존재까지 확정한다는 뜻은 아니다. 법률관계가 밝혀지지 않은 채로 남는 사안을 서둘러 승패로 정리할 수도 없다.
3.12Conclusion Carried Over to the Next Section
공동의 이해관계를 가진 여러 사람이 서로를 위해 당사자 자격을 행사하려 할 때, 누가 그 자격을 얻는지는 이해의 공통성만으로 정해지지 않는다. 앞 단계의 결론은 하나로만 이어받는다. 그 흐름 안에서 이번에 물어야 할 것은 공동 이해관계가 대표 권한을 저절로 만드는가이다.
민사소송법 제53조 제1항은 "공동의 이해관계를 가진 여러 사람이 제52조의 규정에 해당되지 아니하는 경우에는, 이들은 그 가운데에서 모두를 위하여 당사자가 될 한 사람 또는 여러 사람을 선정하거나 이를 바꿀 수 있다"라고 정한다. 이 문언은 선정의 주체를 공동 이해관계를 가진 여러 사람으로, 행위를 당사자가 될 사람의 선정으로, 조건을 제52조에 해당하지 않는 경우로 한정한다.
그러므로 공동 이해관계와 적법한 선정이 함께 있어야 선정당사자의 소송수행을 설명할 수 있다. 이해의 공통성과 선정은 단계가 다르다. 전자는 자격을 행사할 사람을 고를 수 있는 집단의 범위를 이루고, 후자는 그 집단 안에서 실제로 선택된 당사자를 정한다.
그렇다고 선정을 일일이 문서로 확인하도록 요구하는 방식이 모두에게 유리한 것은 아니다. 이러한 불편과 비용은 분산된 이해관계에서 특히 크다. 지지와 선정을 같은 것으로 보는 순간 공동 이해관계의 존재만으로 대표 권한이 생기는 결과와 구별할 수 없다.
이 장면에는 대위자의 피보전채권, 보전 필요, 선정에 따른 소송수행권의 근거 가운데 어느 것을 권한의 근거로 삼는지가 밝혀지지 않았다. 따라서 권리자와 수행자의 법률관계가 미확정으로 남는다. 대위자의 피보전채권이 인정되지 않거나 타인을 위하여 소송할 법정 근거가 없는 경우 수행 권한은 닫힌다. 피보전채권 자료·선정서·승계 자료·참가신청 중 무엇이 제출되는지에 따라 판단이 갈린다.
공동 이해관계만으로 대표 권한이 생기고, 적법한 선정만으로 대위의 보전 필요까지 채워지는 것은 아니다. 두 경로는 각자 요구하는 근거 자료가 다르다. 정해진 자료 없이 다른 사람의 권리를 수행하는 법정 통로가 열리더라도, 그 권리에서 실제로 무엇을 얻었는지는 확정되지 않는다. 마찬가지로 공동 이해관계의 확인은 공동 이해관계인들이 소송을 위해 선정한 당사자라는 선정당사자 지위를 넘어설 수 없다. 공동 이해관계는 대표 권한을 저절로 만들지 않으며, 이 절에서 정리한 것은 선정과 수행 근거를 구별하는 선까지이다. 권리가 넘어갔을 때 소송의 시간은 어떻게 이어지는가?