가사사건에 있어서 관련사건의 객관적·주관적병합과 관련재판적

Objective Consolidation of Cases·Subjective Consolidation of Cases (or Co-Litigation) and Correlated Forum in Inter-related Litigation in Family Disputes

Family Litigation Act, § 14, (1) provides that “when the counts of claims for the cases of several family litigations, or the cases of the family litigation and the family non-litigation, are based on the identical fact relations, if the propriety of one claim comes to be a pre-requisite for the propriety of the other claims, they may be instituted by a single litigation.” This section is the focus of this article. First of all, this article begins with joinder of claims (objective consolidation of cases). Joinder of claims in family disputes is possible, when each claim is the family case, inter-related, and each party is same. Three types of Joinder of claims: ⅰ) family litigation and family litigation, ⅱ) family litigation and family litigation, and ⅲ) family litigation and family non-litigation, are discussed. Joinder of claims is permissible, when each claim is an interrelated family case with identical parties. Second, it deals with the correlated forum in cases involving the “Objective Consolidation of Lawsuits.” When the competent courts for the cases under subsection(1) are different, a case may be transferred to the family court having jurisdiction over one claim from among the cases of the family litigations under Family Litigation Act, § 14, (2). In other words, the family court which has the venue in one case of the many inter-related cases may have the authority to hear them, even though it is not the proper venue for the others. Of course, the court must have personal jurisdiction for one case of the many inter-related cases and have the subject matter jurisdiction over the many inter-related cases. If the court has no subject matter jurisdiction, it should transfer the case to the courts that have the required subject matter jurisdiction. But the family court with the exclusive jurisdiction among the courts with proper venue, particularly, can not transfer the case to other family courts because of the doctrine of forum non conveniens. Third, civil cases and family cases may not be joined, even when they are inter-related. It is important to distinguish civil cases from family cases. The family court may not transfer family cases to the civil courts, because the family court has the exclusive jurisdiction over such cases. Also, the family court with the exclusive jurisdiction can not transfer the cases to the other family courts because of the doctrine of forum non conveniens. Finally, it deals with joinder of parties(or subjective consolidation of lawsuits or co-litigation) and correlated forum. Family Litigation Act is silent on these issues. Family Litigation Act §12 provides: “Except as otherwise prescribed in this Act, the procedures for family litigation shall be governed by the provisions of the Civil Procedure Act.” With respect to joinder of parties and correlated forum, Civil Procedure Act, §25, (2) provides that: “[t]he provisions of paragraph (1) shall apply mutatis mutandis to the case where the right or duty becoming the subject-matter of a lawsuit is common to many persons, or where these many persons become parties thereto as co-litigants due to the same factual or legal causes.” The same section provides for correlated forum in paragraph (1). Thus, “subjective consolidation of lawsuits” in family disputes is possible, only when each claim to co-litigants is a family case and inter-related.