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헌재 2001. 11. 29. 선고 2001헌바46 결정문 [민사소송법 제70조 제2항 위헌소원]
[결정문]
Claimant

[Judgment of the court below]

An educational foundation of the Gu Office ○○ Educational Foundation

Representative President Choi ○-ho

Attorney Magyl (Law Firm)

[Defendant-Appellee]

relevant case

Daegu High Court 2001Na2069 Invalidity of the Contract

Text

Article 70 (2) of the Civil Procedure Act shall not violate the Constitution.

Reasons

1. Case summary and the subject matter of the trial;

A. Case summary

(1) On February 13, 2001, the petitioner participated in the litigation and participated in the litigation to assist the defendant in the litigation to confirm the invalidity of the contract between the Daegu District Court 99Kahap1400 and the administrator of △△△△△ Co., Ltd. (hereinafter referred to as the "defendant"), but was sentenced by the above court against the defendant on February 13, 2001.

(2) On March 8, 2001, the appellant appealed against it, and the defendant waived the appeal and concluded the case on the same day. The appellant filed an application with the Daegu High Court for designating the date for the above case and filed an adjudication on the unconstitutionality of Article 70(2) of the Civil Procedure Act with respect to the supplementary intervenor who did not recognize the validity of the procedural acts of the supplementary intervenor in conflict with the intervenor's procedural acts while continuing the application, but the Daegu High Court dismissed the request for adjudication on the unconstitutionality of the above provision along with the declaration of termination of the lawsuit on May 17, 2001, and the claimant filed an adjudication on the constitutionality of the above provision.

(b) Object of adjudication;

The object of adjudication is whether the provisions of Article 70(2) of the Civil Procedure Act are in violation of the Constitution, and the contents of the subject of adjudication of this case and the related provisions are as follows.

(2) If the intervenor's act of litigation conflicts with the procedural acts of the original party, such act shall not be effective.

Acts by the intervenor pursuant to Articles 71 (Effect of Judgment on Intervenor) and 70 of the Civil Procedure Act.

Where it is impossible to conduct any procedural acts or such procedural acts are not effective, the judgment shall also be effective against the intervenor, except in cases where the intervenor obstructs the procedural acts of the intervenor, and where the original party has failed to conduct any procedural acts which the intervenor is unable to conduct by intention or negligence.

2. Grounds for asserting the claimant and dismissing the application filed by the court;

A. Summary of the claimant's assertion

The supplementary intervenor under the Civil Procedure Act is a person who participates in a lawsuit as an independent authority to protect his own interests, not as an agent of the original party, and Article 71 of the Civil Procedure Act also applies to the intervenor, so it is invalid to interpret Article 70(2) of the Civil Procedure Act as invalid when the supplementary intervenor waives an appeal, the supplementary intervenor's independent appeal is against the principle of equality under Article 11(1) of the Constitution, and it is unconstitutional by infringing on the right to appeal under Article 27(1) of the Constitution.

(b) Reasons for dismissing a court's request;

It is as shown in the attached Form.

3. Determination

A. Whether to file a petition for limited constitutionality

With respect to the provisions of this case subject to adjudication, the claimant filed a claim for a decision of limited unconstitutionality with respect to the provision of this case which is subject to adjudication, unless the intervenor waives an appeal, so long as the intervenor cannot file an appeal.

First, Article 68(2) of the Constitutional Court Act limits the scope of "law" to "the case where a request for adjudication on the constitutionality of a law is dismissed," and thus, it is not a request for adjudication on the constitutionality of a law itself, but a request for adjudication on the constitutionality of a law provision "the case where a request for adjudication on the constitutionality of a law is interpreted as "the case where a request for adjudication on the constitutionality of a law is rejected" is inappropriate as a request for adjudication under Article 68(2) of the Constitutional Court Act. However, if the claimant's claim is not merely a dispute about the interpretation of a law provision, but it is understood as a request for adjudication on the constitutionality of a law itself, such as disputing the uncertainty of a legal provision itself, it is accepted as legitimate under Article 68(2) of the Constitutional Court Act (see Supreme Court Decision 98HunBa2, Mar. 25, 199; Supreme Court Decision 11-1, 200, 208; Supreme Court Decision 11-2, 12, 19698.

However, in light of the purport of the claimant's assertion, the provision of this case is treated equally as the assistant intervenor and the respondent's right to appeal and thus, it infringes the claimant's right to appeal. If so, the claimant's appeal of this case is understood as a claim on the unconstitutionality of the provision of this case which invalidates the intervenor's procedural acts in conflict with the intervenor's procedural acts, and is not the purpose of seeking limited constitutionality. Thus, it is legitimate as a claim on the law stipulated in Article 68 (2) of the Constitutional Court

B. Whether the provision subject to adjudication infringes on fundamental rights

If the supplementary intervenor's procedural action conflicts with the procedural acts of the intervenor, it is examined whether the clause in the adjudication that has no validity infringes on the claimant's right to equality and the right to trial.

When the supplementary intervenor's procedural acts conflict with the procedural acts of the original party, the provisions of the adjudication may be denied, and thus, it can be said that the supplementary intervenor discriminates against the original party.

However, although the supplementary intervenor is not a simple representative of the original party, and is in a position corresponding to the party, since he/she can conduct all the litigation acts by directly participating in the lawsuit on his/her own name and account, he/she is merely an assistant who can conduct the necessary litigation acts in order to win the original party's favor, and is not a party to the lawsuit in his/her own name because he/she does not participate in the lawsuit with his/her own claim against the other party in the lawsuit, and thus, he/she cannot be deemed a party to the lawsuit in a true sense. Therefore, the supplementary intervenor does not affect the res judicata effect of judgment between the original party and the other party to the lawsuit, but only the effect of participating in the means that the supplementary intervenor is forced to

Therefore, in case where the original party and the supplementary intervenor have conducted the litigation in conflict with each other, it is natural in view of the nature of the supplementary participation system to recognize the validity of the litigation by respecting the intentions of the original party directly receiving res judicata of the judgment as the original party to the lawsuit.

Of course, even in a case where an intervenor’s procedural act becomes invalid as it conflicts with the intervenor’s procedural act, if the intervenor’s procedural act cannot assert the illegality of a judgment against the intervenor in the second lawsuit against the intervenor, it would be clearly unfair if the intervenor cannot assert the illegality of the judgment against the intervenor in the lawsuit against the intervenor. However, Article 71 of the Civil Procedure Act provides that “Except where the intervenor is unable to conduct any procedural act under Article 70, or such procedural act is not effective, the judgment shall also be effective against the intervenor.” Thus, Article 71 of the Civil Procedure Act provides that where the intervenor’s procedural act conflicts with the intervenor’s procedural act and thus has no effect, the supplementary provision

Therefore, even though the clause of the case to be tried denies the validity of the procedural acts of the supplementary intervenor who is in conflict with his/her procedural acts by respecting the intentions of the intervenor, it is derived from the difference between the status of the intervenor and the supplementary intervenor, and thus, it cannot be said that the supplementary intervenor would be treated in favor of the intervenor without reasonable grounds. Thus, the provision of the case to be tried cannot be deemed as a provision

In addition, as seen earlier, where a supplementary intervenor’s procedural action is not effective, it does not extend to the supplementary intervenor’s participation. In such a case, the supplementary intervenor may, after the supplementary intervenor, assert that the result of the judgment in the lawsuit may vary if the intervenor did not engage in any act contrary to his/her own act. Thus, even if the supplementary intervenor’s procedural action does not recognize the validity of the supplementary intervenor’s procedural action, it cannot be said that the supplementary intervenor’s right to trial is infringed upon.

Therefore, the clause to be tried does not infringe the right to equality and the right to trial.

4. Conclusion

For the same reasons, the clause to be tried does not violate the Constitution, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Young-young (Presiding Justice)

The NAF Kim Jong-I Kim Jong-Ik Kim Jong-Ik Kim

(Separate Doz.)

Reasons for rejecting the court's motion

The supplementary intervenor under the Civil Procedure Act is not the representative of the original party, but the assistant who is equivalent to the party, in that the supplementary intervenor may directly conduct the procedural acts in his own name, but is merely the assistant who can conduct the procedural acts necessary for the intervenor to win the intervenor in lieu of the incidental or substitute for the intervenor's procedural acts. Thus, the assistant's procedural rights of the supplementary intervenor can not be considered as the party to the lawsuit. Therefore, even though the intervenor cannot conduct the procedural acts by waiver of an appeal against the intervenor's intent and by the decision of the court below became final and conclusive, it is reasonable to allow the supplementary intervenor to protect the intervenor's right to appeal other than the legal acts to prevent the effect of the judgment from being effective against the supplementary intervenor pursuant to Article 71 of the Civil Procedure Act, as well as to protect the intervenor's procedural acts from being in conflict with the intervenor's procedural acts. Thus, even if Article 70(2) of the Civil Procedure Act is interpreted that the supplementary intervenor cannot file an appeal when the intervenor waives an appeal, the supplementary intervenor cannot be deemed to violate Articles 11 and