Summary
A final and conclusive judgment concerning a person who became a plaintiff or defendant on behalf of another also extends its effect to that other person.
3.1The Standard by Which the Path Opens
Only by viewing together the name under which the lawsuit was conducted and the right holder to be protected does one avoid missing the object of finality. The preceding section stated that the statutory reference point in time, such as the close of oral argument, and the presumption concerning failure to state the fact of succession must be examined separately; and now, starting from the question of who receives the benefit of a judgment rendered in an action conducted for another, the standard for the entrance that judgment opens is established. This question comes into focus only when one distinguishes between the person named in the written judgment and the person who held the right that the lawsuit was in fact intended to protect. Yet creditor B, holding a judgment against Association A, demands that member C of the association perform the same obligation. In this scene, creditor B's demand raises the question whether the prior judgment carries over to member C, and under what conditions such a carry-over opens the channel of execution. What is being dealt with here is the standard governing the personal scope to which the judgment's effect extends and how one must show that one falls within that scope, not the actual results of execution or the question of who prevails.
The provision corresponding to this question is Article 218 paragraph (3) of the Civil Procedure Act. Its text provides: "A final and conclusive judgment against a person who became a plaintiff or defendant on behalf of another person is also effective against that other person." Here, the person who became a plaintiff or defendant on behalf of another person refers to one who is the nominal party to the lawsuit yet conducted that lawsuit for the right of another, and that other person becomes a target to whom the judgment's effect extends even without direct participation in the lawsuit. This text presupposes, together with the requirement that the judgment has become final and conclusive, a structure in which the person who conducted the lawsuit and the right holder to be protected are distinct. Moreover, what this text provides is the personal scope within which the effect extends; it does not go so far as to provide how one proves the fact of falling within that scope or how one obtains a certificate of execution.
When this text is connected with the standard established above, it becomes clear that the effect by which a judgment carries over to another person and the step of linking that carry-over to actual enforcement in execution require distinct determinations. The effect of litigation conducted on behalf of another means the effect that a judgment in an action for another has upon that other person, and falling within the statutory personal scope of persons to whom this effect is directed means that the effect of the prior judgment extends to that person. Yet for the entrance to this remedy to open, falling within that scope alone is not sufficient; one must either have the proof required for successor execution, or, where the matter is contested through an action for a grant of execution permission, the performance, parties, and conditions demanded must be specified in the claim statement, and one must be able to defend the right asserted in the chosen action. The former determines to whom the effect flows; the latter determines whether that flow can be framed as a claim for execution. If the two determinations are blurred into one, the mere fact that the effect extends is treated as satisfying the requirements for execution, and this amounts to widening a confirmed conclusion beyond its fixed bounds.
Yet this distinction does not remove every inconvenience. The strongest counterargument is directed at the point that a right holder who did not directly participate may bear the burden of an inadequate lawsuit. That person may have had the lawsuit conducted without obtaining a sufficient opportunity to defend himself, and as a result may become the subject of an unwanted obligation for the sole reason that the judgment's effect extends to him. This loss cannot be covered by the words of the statute alone. Even so, one cannot write that only the nominal party is bound by the judgment. Writing it that way takes only the name under which the lawsuit was conducted as the criterion, misses the right that the lawsuit conducted for another sought to protect, and excludes from the object of the judgment the confirmation that one falls within the statutory personal scope to which the effect extends. The answer this stage maintains is to leave the burden flagged by the counterargument as it is, while not returning to a conclusion that narrows the statutory personal scope on account of that burden.
Placed in a synthetic scene, this standard shows that the obligation creditor B demands of member C falls outside the scope of parties to the prior judgment, and both the relationship of membership in the association and the question whether the prior judgment arose from a lawsuit conducted for another must be confirmed together. One must examine the records of the parties to the prior action, the reference point in time, the succession documents, the certificate of execution, and the relationship between the association and its members, but this scene alone cannot settle the matter. Accordingly, whether member C, a member of Association A, falls within the statutory personal scope to which the judgment's effect extends, and whether the proof required for successor execution or the basis for contesting through an action for a grant of execution permission is prepared, cannot be determined from this scene alone. Where there is only an economic connection and no statutory scope of effect or ground of succession, so that the prior judgment cannot be executed against that person, this channel is closed. Where the relationship of membership in the association is confirmed as an independent individual right, without confirmation of the object or timing of succession or the identity of the parties, the conclusion of automatic binding force of the association's judgment must be revised.
What this section permits is the determination that the effect a judgment in an action for another has upon that other person is received as a matter of the statutory personal scope, and that the entrance to this remedy opens when the materials showing that one falls within that scope and the defensibility of the chosen action are in place. What it does not permit is either applying the prior judgment as it stands on the basis of that person's economic connection alone or, conversely, cutting off the scope to which the effect extends merely by looking at the name of the nominal party. That the actual results of payment, delivery, or recovery, and the outcome of winning or losing, are not settled here belongs to the same boundary.
3.2The Conditions That Block Relief
Behind the question of who receives the benefit of a judgment rendered in an action conducted for another lies the issue whether even a person connected only by economic interest is bound by the prior judgment. Creditor B holds a judgment against Association A while demanding that member C of the association perform the same obligation. B's demand rests on the prior judgment, yet C is not a party who directly participated in the prior action. The question to be made clear in this scene is why C is bound by the prior judgment, and under what conditions such a connection is severed.
Article 218 of the Civil Procedure Act defines the effect of litigation conducted on behalf of another in the following text: "A final and conclusive judgment against a person who became a plaintiff or defendant on behalf of another person is also effective against that other person" (Civil Procedure Act Article 218). This text fixes the subject as the person who became a plaintiff or defendant on behalf of another person, the object as that other person, and the time as the final and conclusive judgment. The act is the conduct of the lawsuit on another's behalf, and the effect is that the final and conclusive judgment reaches that other person. The effect of litigation conducted on behalf of another means the effect that a judgment in an action for another has upon that other person.
The structure of the text and the conclusion of this section connect as follows. If one falls within the statutory personal scope to which a final and conclusive judgment extends, the effect of the prior judgment links to that person; no link is opened by economic connection alone. Economic connection and statutory scope of effect are distinct determinations. The former looks at who actually holds an interest, the latter at against whom the judgment operates. Only by distinguishing the two does one avoid missing why the personal connection at this stage is established or blocked.
An inconvenience remains with this distinction. It is that a right holder who did not directly participate may bear, as it stands, the burden of inadequate defense in a lawsuit he did not choose. If a new trial were demanded at every succession, a route would also open by which a mere transfer of the right escapes execution of the prior judgment. Such loss and circumvention cannot be taken lightly. Yet one cannot write that only the nominal party is bound by the judgment. The text plainly places that other person as the object of the effect. The burden of an inadequate lawsuit can be raised, but that burden alone cannot erase the connection stated in the text.
What can be confirmed in a synthetic scene is only that B holds a judgment against Association A and that C is a member of that association. Unless this relationship is shown to correspond to "that other person" in an action for another, the statutory connection by which the prior judgment has effect on C is not confirmed. If the relationship of membership in the association is confirmed as an independent individual right, the conclusion of automatic binding force of the association's judgment is revised. The records of the parties to the prior action, the reference point in time, the succession documents, the certificate of execution, and the relationship between the association and its members, which would permit judgment of the personal connection in the judgment's effect and in successor execution, are not settled in this scene. The year, amount, and commencement date are also undetermined. Accordingly, whether the judgment against Association A can be executed against C remains undetermined.
The conclusion permitted by this section is as much as this. Only where one falls within the textual effect of litigation conducted on behalf of another and has the proof required for successor execution, or contests through an action for a grant of execution permission, does the prior judgment connect to that other person. Conversely, where there is only an economic connection and no statutory scope of effect or ground of succession, so that the prior judgment cannot be executed against that person, if any one of the statutory requirements is not met, the channel of remedy at this stage is closed. Who that person is is not determined by actual interest alone, nor is the statutory requirement satisfied merely by the absence of materials.
3.3The Boundary That Remains When There Is No Data
Who receives the benefit of a judgment rendered in an action conducted for another? The preceding stage of analysis examined together the presumption concerning failure to state the fact of succession. Taking that over, what is asked at this point is where the boundary lies that cannot be settled for lack of materials. Creditor B holds a judgment against Association A and demands that member C of the association perform the same obligation. Faced with this demand, if it is unclear at what point in time who is the person who conducted the lawsuit and who is the right holder to be protected, the adjudication must first determine where to situate itself between settled and impossible.
The statutory text corresponding to this question is Article 218 paragraph (3) of the Civil Procedure Act. That paragraph (3) provides: "(3) A final and conclusive judgment against a person who became a plaintiff or defendant on behalf of another person is also effective against that other person." Here the subject indicated by the text is the person who became a plaintiff or defendant on behalf of another person. The act is putting forward one's name and conducting the lawsuit, and the condition is that a final and conclusive judgment against that person exists. The effect of the text is that it is effective against that other person, which is none other than the effect of litigation conducted on behalf of another, in other words the effect that a judgment in an action for another has upon that other person. This paragraph does not address the issues arising under other provisions.
Connecting this text with the conclusion of this section reveals that the object of determination is the personal scope to which the effect extends and that this must be distinguished from other materials of judgment. The text of the preceding paragraph fixes only the direction that the effect extends to that other person; it does not itself specify, in an individual case, who that other person is or the point in time at which the effect extends. Hence, where the object or timing of succession or the identity of the parties is not confirmed, the matter is left as one in which the materials of determination have not been specified. To leave it in this position does not mean that the judgment has no effect; it means that the direction may be settled once materials are confirmed, though it cannot be settled now. Impossibility differs from a state that excludes the possibility that such materials exist, and the distinction between the two is for the sake of the order of determination.
The inconvenience that arises if this boundary is drawn narrowly is clear: a right holder who did not participate in the lawsuit may bear the burden of a lawsuit conducted without his knowledge. That right holder may not have had the opportunity to defend himself, and may not have had materials concerning the unfolding of the judgment. Even so, the answer the author maintains is that one cannot write that only the nominal party is bound by the judgment. This answer is meant not to lose the direction of the preceding text; it does not proceed to a conclusion that confines the effect of a judgment in an action conducted for another to the nominal party alone, or that excludes from the outset the rights to be protected lying outside it.
Looking at this scene, creditor B, holding a judgment against Association A, demands that member C of the association perform the same obligation. The facts relevant to this question in this scene are that it must be confirmed together who the parties to the prior action were, where the reference point in time of the judgment lies, what the succession documents or the certificate of execution are, and what the relationship between the association and its members is. Yet this scene does not contain the actual records of those items. The year, amount, and commencement date, as well as the outcome of the judgment, are not specified either. Accordingly, in this scene, where the object or timing of succession or the identity of the parties is not confirmed, those matters remain undetermined. If the relationship of membership in the association is confirmed as an independent individual right, the conclusion of automatic binding force of the association's judgment changes.
Accordingly, the conclusion permitted at this point is that, within the direction of the text that a final and conclusive judgment against a person who became a plaintiff or defendant on behalf of another person is also effective against that other person, matters concerning which the object or timing of succession or the identity of the parties is not confirmed are not settled as impossible but are left undetermined. What is not permitted is to write that the judgment does not reach any other person for the sole reason that materials are lacking and, conversely, to treat all unconfirmed personal connections as established. Undetermined is a marker of insufficient materials, leaving an open place where the direction may change when the materials of determination are filled in.
3.4The Records Needed for Determination
Accepting the premise that the statutory reference point in time, such as the close of oral argument, and the presumption concerning failure to state the fact of succession must be examined separately, the question now is what records are needed for that determination. In other words, the remaining question is on what materials the stage is to be adjudicated in order to ascertain to whom a judgment rendered in an action conducted for another falls.
The text provides: "A final and conclusive judgment against a person who became a plaintiff or defendant on behalf of another person is also effective against that other person." (Civil Procedure Act Article 218). Here the subject is the person who became a plaintiff or defendant on behalf of another person, the object is that other person, and the condition is that a final and conclusive judgment against that person exists. The effect of litigation conducted on behalf of another means the effect that a judgment in an action for another has upon that other person.
To connect this text to the conclusion of this section, the criteria for adjudicating the stage must be made clear. The stage is adjudicated only on the materials recorded regarding the parties to the prior action, the reference point in time, the succession documents, the certificate of execution, and the relationship between the association and its members. Adjudication of the stage is done only on the settled records. The determination of the statutory reference point in time, such as the close of oral argument, and the presumption concerning failure to state the fact of succession are distinct issues and are not bundled together. The former concerns the temporal boundary of the prior action; the latter concerns how to handle facts not revealed in the records. Records that do not exist are not filled in by presumption.
If a person who did not appear in the lawsuit bears as it stands the result of a lawsuit conducted by another, the loss of the opportunity to defend and the inconvenience of being bound by the result remain. For only by viewing together the name under which the lawsuit was conducted and the right holder to be protected does one avoid missing the object of finality. The burden flagged by the counterargument does not disappear, but a conclusion directed at erasing the personal connection revealed in the records themselves on account of that burden runs contrary to what has been settled.
The only fact relevant to this scene is this relationship of demand. To adjudicate the stage there must be materials recorded regarding the parties to the prior action, the reference point in time, the succession documents, the certificate of execution, and the relationship between the association and its members, and the adjudication is made on the recorded materials. Since the scene sets no year, amount, commencement date of the period, or result of the judgment, such values are not determined. Where the object or timing of succession or the identity of the parties is not confirmed, the matter remains undetermined.
What this section permits is the limited determination of adjudicating the stage only on the materials contained in the records and not filling in absent records by presumption. That is, within the principle that only by viewing together the name under which the lawsuit was conducted and the right holder to be protected does one avoid missing the object of finality, a conclusion that widens or narrows the object of the judgment without settled materials is not permitted in this section. Items left undetermined do not immediately amount to impossibility of relief but are left in a state where records do not yet exist.
3.5Circumstances That Change the Decision
그 결론은 변론종결 등 법정 기준시점과 승계사실 미진술에 관한 추정을 나누어 보아야 한다는 점을 남겨 두었고, 이제 앞 단계의 판정을 바꾸는 조건이 무엇인지 묻는다. 단체 A에 대한 판결을 가진 채권자 B는 단체의 구성원 C에게 같은 의무를 이행하라고 요구하는 장면에서, 남을 위하여 소송한 판결은 누구에게 돌아가는가라는 물음과 함께 어떤 변경이 기존 단계 판정을 뒤집는가가 남는다.
이 물음에 해당하는 문언은 민사소송법 제218조이다. 그 제218조 제3항은 "다른 사람을 위하여 원고나 피고가 된 사람에 대한 확정판결은 그 다른 사람에 대하여도 효력이 미친다"라고 정하고 있다. 이 문언은 소송을 수행한 사람과 보호받을 권리자를 나란히 두어, 확정판결의 효력이 명의상 당사자에 그치지 않고 그를 위하여 소송된 다른 사람에게도 미친다고 말한다. 여기서 다른 사람이 누구인지, 그리고 효력이 어떤 범위로 미치는지는 문언 자체가 정해 주지 않는다.
민사소송법 제218조 제3항의 문언을 단체 판결에 적용하면, 단체 A를 위하여 소송된 판결이 단체 구성원 C에게 미치는 효과는 소송담당의 효력이라는 개념으로 설명된다. 여기서 소송담당의 효력은 타인을 위한 소송의 판결이 그 타인에게 미치는 효과를 뜻한다. 이 효과를 단계 판정의 기준으로 삼을 때, 단체 구성원이라는 관계가 독립된 개인 권리로 확인되면 단체 판결의 당연한 구속이라는 결론을 고친다. 이 구별은 단체라는 관계에 의한 묶임과 개인 권리의 확인에 의한 묶임을 나누어 보아야 한다는 점을 드러낸다.
직접 참여하지 않은 권리자가 불충분한 소송의 부담을 떠안을 수 있다는 반론은, 구성원 C가 자신이 선택하지 않은 소송의 결과를 그대로 받아들여야 한다는 불편을 겨냥한다. 소송의 기회가 충분히 주어지지 않은 채 진행된 절차에서 그 부담이 개인에게 돌아간다면, 방어권과 책임의 균형이 어긋난다. 그러나 이 반론은 결론을 바꾸지 않는다. 단체를 위하여 수행된 소송의 확정판결이 그 타인에게 효력을 미친다는 문언의 범위를 지우고, 명의상 당사자라는 이름만을 기준으로 삼는 것은 이 절의 결론과 어긋난다.
이 장면에서 확인할 사항은 전소 당사자, 기준시점, 승계 자료, 집행문, 단체와 구성원 관계이며, 이 장면만으로는 확정할 수 없다. 효력이 미치는 법정 인적 범위에 들고 승계집행에 필요한 증명을 갖추거나 부여의 소로 다투는 경우에는 앞 판결의 구속이 유지되지만, 경제적 관련만 있고 법정 효력 범위나 승계 근거가 없어 그 사람에게 앞 판결을 집행할 수 없는 경우에는 차단된다. 승계의 대상·시점이나 당사자 동일성이 확인되지 않은 사항은 미확정으로 남는다.
이 절이 허용하는 결론은, 타인을 위한 소송의 확정판결이 그 타인에게 효력을 미친다는 범위 안에서 단체 판결의 구속을 인정하되, 단체 구성원이라는 관계가 독립된 개인 권리로 확인되면 그 구속의 근거가 달라진다는 것이다. 허용하지 않는 결론은, 경제적 관련만으로 앞 판결의 구속을 그대로 이어가거나, 명목상 당사자만 판결에 묶인다고 보는 것이다. 미확정 항목은 이 판단을 바꾸지 않고 조건부 구별만 남긴다.
3.6The Strongest Counterargument and the Answer
채권자 B는 단체 A에 대한 판결을 가지고 있고, 같은 의무의 이행을 단체의 구성원 C에게 요구한다. 그 결론은 변론종결 등 법정 기준시점과 승계사실 미진술에 관한 추정을 나누어 보아야 한다는 전제 위에 선다. 여기서 지금 묻는 것은, 앞의 승계 논증과는 달리, 직접 소송에 참여하지 않은 권리자가 왜 불충분한 소송이 남긴 부담까지 떠안을 수 있는지, 그리고 그 부담이 요구될 때 법원이 무엇을 근거로 삼는지이다.
국가법령정보센터에서 보이는 문언은 “다른 사람을 위하여 원고나 피고가 된 사람에 대한 확정판결은 그 다른 사람에 대하여도 효력이 미친다”이다(민사소송법 제218조). 이 문장에서 정해지는 것은 세 가지이다. 먼저 주체는 다른 사람을 위하여 원고나 피고가 된 사람이다. 다음으로 그 사람에 대한 확정판결이라는 요건이 붙는다. 마지막으로 그 판결의 효력이 그 다른 사람에까지 미친다는 법정 인적 범위가 선언된다.
이 문언과 이 절의 결론을 이으면, 소송담당의 효력이라는 개념이 정해진 자리가 드러난다. 이 정의가 중요한 까닭은 판결의 대상과 판결이 묶는 사람을 서로 다른 것으로 나누어 보기 때문이다. 대상은 이행하라고 요구된 의무이고, 묶이는 사람은 그 의무에 관한 판결의 효력 범위에 든 사람이다. 그러므로 명목상 당사자만 판결에 묶인다고 쓸 수는 없다. 명의를 빌려준 이름과 보호받을 권리를 가진 사람을 함께 보아야 확정의 대상을 놓치지 않는다.
그렇다고 문제가 없는 것은 아니다. 가장 강한 반론은 승계와 집행이라는 실제의 손실을 겨냥한다. 판결이 나온 뒤 권리가 한 사람에게서 다른 사람에게 넘어갈 때마다 새 재판을 요구해야 한다면, 채무자는 권리이전만으로 앞의 판결을 피해 갈 수 있다. 이 견해는 불충분한 소송, 즉 권리를 옹호할 기회를 제대로 받지 못한 사람이 남긴 판결의 부담까지 참여하지 않은 권리자가 떠안는 것을 절차상의 불이익으로 본다. 다만 그 불편이 크다고 해서 답이 바뀌지는 않는다. 명목상 당사자만 판결에 묶인다고 쓰면 승계에 따른 집행이 이름 사이의 간격 하나로 무너진다. 그래서 저자는 효력이 미치는 법정 인적 범위에 들고 승계집행에 필요한 증명을 갖추거나 부여의 소로 다투는 경우에 그 판결을 그 사람에게 적용할 수 있다고 본다.
이 장면으로 돌아가면, 단체 A에 대한 판결을 가진 채권자 B는 단체의 구성원 C에게 같은 의무를 이행하라고 요구한다. 이 요구에서 확인할 것은 전소 당사자, 기준시점, 승계 자료, 집행문, 그리고 단체와 구성원의 관계이다. C가 단체의 구성원이라는 관계만으로 단체 판결의 효력 범위에 당연히 드는지는 이 장면만으로 확정되지 않는다. 경제적 관련만 있고 법정 효력 범위나 승계 근거가 없어 그 사람에게 앞의 판결을 집행할 수 없는 경우도 남는다. 또한 승계의 대상·시점이나 당사자 동일성이 확인되지 않은 경우에는 미확정으로 두어야 한다.
이 절에서 허용되는 결론은, 명목상 당사자만 판결에 묶인다고 쓸 수 없다는 판단이다. 다른 사람을 위하여 원고나 피고가 된 사람에 대한 확정판결은 그 다른 사람에게도 효력이 미치므로(민사소송법 제218조), 이름 사이의 구별만으로 효력의 범위를 잘라낼 수 없다. 허용되지 않는 것은 앞의 승계 논증이나 구성원이라는 지위를 그대로 적용해 이 요구를 자동으로 인용하는 일이다. 그쪽의 물음은 각각 따로 남는다.
3.7The Link to the Application and the Dispositive Part
앞 절에서 명목상 당사자만 판결에 묶인다고 쓸 수는 없다는 결론을 전제로, 그 다른 사람에게까지 미치는 효력의 범위를 묻는다. 명목상 소송을 수행한 사람과 실질적으로 보호받을 권리자가 다를 때 확정판결의 대상은 어느 쪽인가?
이 물음에 답하는 문언으로 민사소송법 제218조 제3항은 "③다른 사람을 위하여 원고나 피고가 된 사람에 대한 확정판결은 그 다른 사람에 대하여도 효력이 미친다."라고 규정한다(민사소송법 제218조). 여기서 '다른 사람을 위하여'란 소송의 명목상 주체가 자기 자신의 이익만이 아니라 타인의 이익을 위하여 원고 또는 피고의 지위를 맡는 경우를 가리키는 말이다. 그 사람이 상대방인가, 소를 제기한 원고인가, 소를 당한 피고인가를 묻지 않고, 확정된 판결이 그 사람에게 선고되었다는 점에서 출발한다.
이 문언이 가리키는 주체와 조건을 옮겨 보면, 확정판결의 효력이 미치는 대상은 소송의 명목상 당사자만이 아니라 그가 대신하여 소송한 '다른 사람'까지 포함한다. 저자가 여기서 구별해야 한다고 보는 것은 효력이 미치는 법정 인적 범위와 실제 집행이 성사되기까지의 단계이다. 소송담당의 효력은 타인을 위한 소송의 판결이 그 타인에게 미치는 효과를 뜻하는데, 이 효과는 판결의 인적 효력 범위에 들었다는 사실만으로 열리는 법적 통로이다. 이를 실제 지급이나 인도라는 성취로 바꾸는 것은 별도의 단계에서 다루는 문제이고, 이 절은 법정 효력 범위의 확정에 그치므로 그 경계를 넘어서지 않는다.
직접 참여하지 않은 권리자가 불충분한 소송의 부담을 질 수 있다는 점이 가장 설득력 있는 반론이다. 소송을 수행한 사람이 적극적으로 다투지 않았거나 유리한 증거를 내지 않았다면, 그 판결의 불리한 결과를 소송에 끼지 못했던 사람이 고스란히 받게 된다는 것이다. 그 불리함에도 불구하고 저자가 보기에 명목상 당사자만 판결에 묶인다고 쓸 수는 없다. 승계가 있을 때마다 새 재판을 요구하면, 단순한 권리이전만으로 앞 판결의 구속에서 벗어나는 틈이 생기기 때문이다.
합성 장면에서 채권자 B는 단체 A에 대한 판결을 가진 채로, 그 단체의 구성원 C에게 같은 의무의 이행을 요구한다. 여기서 물음은 그 판결의 효력이 구성원 C에게도 미치는가, 미친다면 어떤 근거로 미치는가이다. 단체 구성원이라는 관계가 독립된 개인 권리로 확인되면 단체 판결의 당연한 구속이라는 결론을 고친다는 점은 이 절이 아니라, 단체 판결이 구성원 개인을 모두 묶는가를 묻는 다음 물음에 속한다. 이 절의 앞의 조건인 '다른 사람을 위하여 원고나 피고가 된' 경우에 해당하는지는 전소 당사자·기준시점·승계 자료·집행문·단체와 구성원 관계라는 기록을 근거로 판단할 일이지, 장면만으로 확정할 수 없으므로 미확정으로 남긴다.
이 절이 허용하는 것은 타인을 위하여 소송한 당사자에 대한 확정판결의 효력이 그 타인에게도 미친다고 보는 좁은 결론이다. 허용하지 않는 것은 경제적 이해관계가 있는 모든 사람을 판결에 묶는다거나, 효력이 미친다는 사실만으로 그 사람에게 앞 판결을 즉시 집행할 수 있다는 확장이다. 승계의 대상이나 시점, 당사자 동일성이 확인되지 않은 경우에는 이 절에서 결론을 내리지 않고 미확정으로 남긴다.
3.8The Scope This Section Undertakes
변론종결 등 법정 기준시점과 승계사실 미진술에 관한 추정을 나누어 보아야 한다는 전제 위에서, 이번 단계는 그 판결의 효력이 누구에게 향하는지를 따로 묻는다. 이름과 권리자를 함께 봐야 확정의 범위를 놓치지 않는다는 까닭이 여기에 있다.
이 물음에 답하는 문언이 민사소송법 제218조에 있다. 그 제3항은 "③다른 사람을 위하여 원고나 피고가 된 사람에 대한 확정판결은 그 다른 사람에 대하여도 효력이 미친다."고 정한다. 이 문언은 세 요소를 짚는다. 다른 사람을 위하여 소송을 맡은 원고나 피고, 소송을 맡은 사람에 대한 확정판결, 그리고 소송을 맡은 사람이 아닌 그 다른 사람이라는 주체다. 조문의 다른 항에 관한 쟁점은 이 절의 범위가 아니다.
이 문언에 따라 남을 위하여 소송한 판결은 누구에게 돌아가는가에 답하면, 다른 사람을 위하여 원고나 피고가 된 사람의 확정판결은 그 다른 사람에게도 효력이 미친다. 여기서 판결에 묶이는 주체를 나눌 때, 소송을 수행한 이름과 그 이름 뒤에서 보호받을 권리를 가진 사람을 각각 보아야 한다. 전자를 후자로 환원하지 않아야 하고, 후자를 전자의 부수물로도 다루지 않아야 한다. 이 구별이 확정의 대상을 놓치지 않게 하는 기준이다.
이렇게 쓰면 직접 참여하지 않은 권리자가 불충분한 소송의 부담을 떠안을 수 있다. 소송을 수행하지 않은 사람이 절차에서 방어 기회를 충분히 누리지 못했음에도, 그 판결의 불리한 내용이 그에게 돌아오는 부담이 생긴다는 점이 반론의 핵심이다. 소송을 맡은 이름에만 효력을 한정하면, 타인을 위한 소송이란 형식을 통해 세운 확정이 정작 보호하려던 사람에게는 도달하지 못한다.
합성 장면에서 채권자 B는 단체 A에 대한 판결을 가지고 단체의 구성원 C에게 같은 의무의 이행을 요구한다. 이 장면에서 판단 자료는 전소 당사자, 기준시점, 승계 자료, 집행문, 단체와 구성원 관계이다. 이 가운데 단체와 구성원 관계가 앞서 정한 소송담당의 효력이 미치는 범위인지는 이 장면만으로 확정되지 않는다. 관계의 성격이 확인되지 않는 한 이 점은 미확정으로 남는다.
이 절이 허용하는 결론은, 다른 사람을 위하여 소송을 맡은 사람에 대한 확정판결의 효력이 그 다른 사람에게도 이른다는 것이고, 그 범위 안에서 소송담당의 효력을 타인을 위한 소송의 판결이 그 타인에게 미치는 효과로 이해하는 것이다. 여기에 더해 명목상 당사자만 묶인다는 방향으로 확정의 대상을 좁힐 수는 없다. 다만 단체의 구성원이라는 사유만으로 앞 판결이 그 개인에게 이른다고 단정할 수 있는지는 확정되지 않았다.
3.9Application of the Text of the Provisions and the Holdings of Precedents
The analysis has arrived at the question of to whom a judgment obtained in a lawsuit conducted for another person accrues, and this stage addresses to which persons within the legally prescribed range the effect of that judgment extends. From the earlier discussion, only the distinction that the statutory points in time, such as the close of oral argument, and the presumption concerning the non-statement of the fact of succession must be considered separately is taken over; the present question is confined to how the personal connection between the effect of the judgment and enforcement by a successor is determined according to the relevant wording. Creditor B holds a judgment against Association A, and on the basis of that judgment demands that Member C, a member of the association, perform the same obligation. Whether this demand falls within the scope of the effect of the preceding judgment is the issue.
Here, the subject described as a person who became plaintiff or defendant for another person is the person who bore the name of the lawsuit, and the person designated as that other person refers to the right holder whom that bearer sought to protect. The expression that the effect of a final and conclusive judgment extends to that other person as well denotes the relationship whereby the effect of the judgment against the bearer reaches that other person. The bearer is not merely a nominal party borrowing the other person's name but the subject who conducted the lawsuit for that person, and that other person likewise becomes one who receives the effect of the judgment without entering among the parties surrounding the judgment.
In applying this wording to the personal connection between the effect of the judgment and enforcement by a successor, two steps must be distinguished. The first is the determination that fixes the legally prescribed personal range of those who receive the effect as that other person; the second is the determination that examines whether that person may proceed to enforcement by a successor holding the preceding judgment, that is, whether the necessary proof has been furnished or whether the matter is contested through an action for the grant of an execution title. The effect of conducting litigation for another means the effect whereby a judgment in litigation conducted for another person reaches that other person, and this is a concept that describes the former personal range. Falling within that range does not mean that enforcement against that person is immediately accomplished, and the two determinations require different materials. In accordance with this distinction, the personal connection between the effect of the judgment and enforcement by a successor is determined by the wording of paragraph (3) of Article 218.
The inconvenience targeted by this limitation is plain: a right holder who did not directly participate may bear the burden of a lawsuit in which he could not go through the litigation process and which was unfavorable to him. His rights may not have been adequately represented in the lawsuit conducted by another person, and he may have to accept its result without having told his own story. Even so, this inconvenience cannot change the conclusion that it cannot be said that only the nominal party is bound by the judgment. If the scope of the effect of the judgment is confined to the person who bore the name, a situation arises in which, merely by the substitution of the bearer, the binding force of the preceding judgment is escaped and a new trial is demanded anew. The dangerous part may be left as it is, but the range that the wording fixes by providing that the effect extends to that other person as well cannot be narrowed.
Looking next at this scene, Creditor B, holding a judgment against Association A, demands that Member C, a member of the association, perform the same obligation. To determine in this scene whether C falls under the "other person" of the wording above, materials are required that confirm who the parties to the prior action were, whether that lawsuit was conducted for another person, and whether the relationship between the association and its member falls within the legally prescribed range of effect. The entries in the execution clause and the succession materials, together with materials on the point in time, must also be examined. If this relationship has not yet been confirmed, the determination remains undetermined.
The conclusion that can be reached in this section goes no further than this: the personal relationship by which the final and conclusive judgment of a person who became plaintiff or defendant for another person affects that other person is fixed according to the wording, and only those who fall within that range proceed to the next determination of enforcement by a successor. Conclusions that assert matters not confirmed, such as the object and timing of the succession and the identity of the parties, are not permitted in this section, nor is a lack of materials read at once as a bar to relief.
3.10Fine Distinctions Within the Stage
In the scene where Creditor B, holding a judgment against Association A, demands that Member C, a member of the association, perform the same obligation, the question presently posed, in addition to that of to whom a judgment obtained in a lawsuit conducted for another person accrues, is what parts must again be separately determined within the personal connection between the effect of the judgment and enforcement by a successor. This question takes over the earlier division of the presumptions as it stands, but asks by what criterion they should again be distinguished within that division.
The source text corresponding to this question is paragraph (3) of Article 218 of the Civil Procedure Act: "A final and conclusive judgment against a person who became plaintiff or defendant for another person is also effective against that other person." This wording takes as its subject a person who became plaintiff or defendant for another person, in other words, the party who conducted the lawsuit; it takes as its basis the final and conclusive judgment against that person; and it attaches the condition that the judgment is effective against that other person. Here, that other person becomes the object of the effect of conducting litigation for another, that is, the effect whereby a judgment in litigation conducted for another person reaches that other person, even if he did not directly participate in the lawsuit.
This wording and the conclusion of this section are directly connected. If one falls within the legally prescribed personal range over which the effect of the final and conclusive judgment extends, an increase in the number of persons bound by the judgment is the result under the express text. The reason one must, at this juncture, distinguish the name that conducted the lawsuit from the person holding the right to be protected is that the object of finality varies according to which name the earlier determination is attached to. Only after such a distinction has been made do the conditions of the cases in which it operates, in which it is blocked, and in which it remains undetermined arise; if a step beyond these three were created separately, the scope of the effect of the final and conclusive judgment would be enlarged arbitrarily.
The loss targeted by the counterargument that a right holder who did not directly participate may bear the burden of an insufficient lawsuit is plain. If a person who was not given a proper opportunity to defend himself must bear the result of a lawsuit conducted by another as it stands, his rights may be diminished without regard to his own voice. If it were settled that binding only the name that conducted the lawsuit suffices, the connection of effect that the institution of litigating for another person has provided would be severed, and finality concerning the same obligation would be raised as an issue again and again.
The fact suiting this question in the synthetic scene is that Creditor B holds a judgment against Association A and, on the basis of that judgment, demands that Member C perform the same obligation. Comparing this fact with the conditions, relief is permitted where, as between B and A, a judgment in a lawsuit conducted for another person is rendered, where the persons fall within the legally prescribed personal range over which the effect extends, and where the proof necessary for enforcement by a successor has been furnished or the matter is contested through an action for the grant of an execution title. Where there is only an economic connection and, there being neither a legally prescribed range of effect nor a ground of succession, the preceding judgment cannot be enforced against C, relief is not permitted. The parties to the prior action, the point in time, the succession materials, the execution clause, and the relationship between the association and its member must remain in the records if one is to distinguish what is confirmed from what remains. However, whether C is a person bound by the judgment against Association A, and in what capacity B participated in the preceding lawsuit, cannot be determined from this scene alone; accordingly, where the object or timing of the succession, or the identity of the parties, has not been confirmed, the matter remains undetermined.
Accordingly, the conclusion permitted at this juncture is that the persons to whom the effect of the judgment extends must be identified within the legally prescribed personal range, and that, within it, the cases in which the necessary proof has been furnished and those in which it has not, together with the cases in which confirmation is incomplete, must be distinguished according to the expressly stated conditions. By contrast, conclusions that create a new step beyond this distinction, or that treat only the name appearing in the nominal documents as bound by the judgment and thereby lose the very rights the lawsuit sought to protect, are not permitted at this juncture.
3.11Synthesis of Effectiveness, Blockage, and Undetermination
It proceeds on the premise that the statutory points in time, such as the close of oral argument, and the presumption concerning the non-statement of the fact of succession must be considered separately. The question of to whom a judgment obtained in a lawsuit conducted for another person accrues has already been answered here, and what remains now is, in the scene where Creditor B, holding a judgment against Association A, demands that Member C, a member of the association, perform the same obligation, to distinguish by what route and upon whom that preceding judgment takes effect. In short, this section separates the three: taking effect, being blocked, and remaining undetermined.
The relevant wording is short. Article 218 of the Civil Procedure Act provides: "A final and conclusive judgment against a person who became plaintiff or defendant for another person is also effective against that other person." In this wording the subject is the person who became plaintiff or defendant for another person, and the object is that other person. The act is the lawsuit conducted by that person, and the condition is that a final and conclusive judgment against him exists. The effect spoken of by the wording reaches even that other person, notwithstanding that he did not directly participate in the lawsuit. This means that the effect of conducting litigation for another, that is, the effect whereby a judgment in litigation conducted for another person reaches that other person, is the route provided by law.
The explanation connecting this wording with the conclusion of this section is simple. If one falls within the legally prescribed personal range over which the effect of the judgment extends, the preceding judgment opens to that person; and if, added to this, the proof necessary for enforcement by a successor has been furnished or the matter is contested through an action for the grant of an execution clause, the path to enforcement opens definitively. What must be considered separately from this is the economic connection. Where there is only an economic connection and, there being neither a legally prescribed range of effect nor a ground of succession, the preceding judgment cannot be enforced against that person, that relationship cannot serve as a ground of effect, and the matter divides toward being blocked. Third comes the undetermined case. Where the object or timing of the succession, or the identity of the parties, has not been confirmed, the matter is not placed at once in the blocked conclusion merely because the materials are insufficient, but remains undetermined. This is why the point in time must be distinguished from the succession materials and from the kinds of execution clause.
The strongest counterargument targets the distribution of loss. Both the point that a right holder who did not directly participate may bear the burden of an insufficient lawsuit, and the point that if a new trial were demanded at each succession one could avoid enforcement merely by transferring the right, are substantive disadvantages. Gains and losses run in opposite directions between the person who, without being able to put forward his name, has the result thrust upon him and the successor who seeks to slip away by taking advantage of that disadvantage. Even so, the conclusion is maintained within the range of the preceding answer. Without erasing the unfavorable aspect of that counterargument, the answer is fixed on the side that requires the personal range prescribed by law together with the ground of succession.
The relevant facts of the synthetic scene narrow down to a single one. Whether C, in this demand, falls within the legally prescribed personal range over which the effect extends, and whether the proof necessary for enforcement by a successor or an action for the grant of an execution clause can be reached, has not been confirmed; accordingly, the relationship between the association and its member, the parties to the prior action, the point in time, the succession materials, and the execution clause must be compared. As the year, amount, date of commencement, and outcome of the judgment are not established, no determination can be made from this scene alone, and the matter remains undetermined.
The conclusion this section permits is narrow. Only where one falls within the legally prescribed personal range and has furnished proof or contests the matter through an action for the grant of an execution title does the effect of the preceding judgment open and take effect; it does not open on the strength of an economic connection alone, and where there is no ground of succession and the preceding judgment therefore cannot be enforced against that person, it is blocked. An unconfirmed object or timing of the succession, or an unconfirmed identity of the parties, must be left undetermined, and a lack of materials must not be read as a bar to relief.
3.12Conclusion Carried Over to the Next Section
Before this demand, the question of to whom a judgment obtained in a lawsuit conducted for another person accrues is raised anew. This is why one must distinguish between the person who put his name to the lawsuit and the right holder who is to be protected by that lawsuit. Where the two names differ, the range to be ascertained now is how far the object of the final and conclusive judgment should be taken.
Paragraph (3) of Article 218 declares: "A final and conclusive judgment against a person who became plaintiff or defendant for another person is also effective against that other person." The subject indicated by this wording is the person who became plaintiff or defendant for another person; the act is the lawsuit conducted by that person; and the condition is that a final and conclusive judgment against him has been pronounced. The effect is that the effect of the final and conclusive judgment extends to that other person as well. What this paragraph addresses is only the limited question posed by this wording.
On the basis of this wording, the judgment is regarded as extending beyond the person who put his name to the lawsuit to another person. Here two steps must be seen together. One is that the effect arises as against the party who put his name to the lawsuit; the other is that the effect, in accordance with the relationship of litigating for another person, extends to that other person as well. This definition explains the latter step, and this is why it cannot be said that only the nominal party is bound by the judgment.
Even so, the counterargument remains that a right holder who did not directly participate may bear the burden of an insufficient lawsuit. This counterargument targets the loss of the right holder who, having received insufficient defense, must bear the outcome of another person's lawsuit as it stands. To this counterargument the author's answer is that even so, it cannot be said that only the nominal party is bound by the judgment. One cannot assert that a person is excluded from the range of effect merely because he did not put his name to the lawsuit, and the disadvantage the right holder will suffer does not erase that fact either.
In the synthetic scene, Creditor B demands, on the basis of a judgment obtained against Association A, that Member C perform the same obligation. Under the foregoing conditions, the parties to the prior action are Creditor B and Association A, and Member C is added to them. The material of the relationship between the association and its member underlies the demand, but whether this relationship corresponds to one of litigating for another person cannot be determined from this scene alone. The object and timing of the succession materials, and the identity of the parties, likewise remain unconfirmed here, and the determination accordingly remains undetermined. If the relationship of being a member of the association is confirmed as an independent individual right, there also remains the point of revising the conclusion that the association's judgment binds the members as a matter of course.
What this section permits is the judgment, within the range that a final and conclusive judgment against a person who became plaintiff or defendant for another person is also effective against that other person; it does not permit saying that only the nominal party is bound by the judgment. The fact and timing of the succession, the scope of the execution clause, and the legal nature of the relationship of membership in the association are not determined in this section. The wording's confirmation of to whom a judgment obtained in a lawsuit conducted for another person accrues, and the limits of its application, are fixed here. Does an association's judgment bind all of its members individually?