가사소송에서의 소송능력

Litigation Capacity in Domestic Litigation

The purpose of this study is to examine the litigation capacity of minors, adult wards, and limited wards in domestic litigation. The litigation capacity is needed to be examined from the aspect of theory of analysis and theory of legislation. Actions related to status cannot be subrogated by a legal representative; limited capable persons are considered to perform actions related to status separately when they have mental capacity. In domestic litigation of family relations, thus, is may be said that limited capable persons with mental capacity can file a lawsuit as a plaintiff without participation of a legal representative. Those who deny the litigation capacity of limited capable persons with mental capacity provide protection of profit of the limited capable persons as the ground. Although what is profit of the limited capable persons is not clarified, there cannot be objections in that it is needed to protect the persons themselves. However, there may be differences in thoughts on how requests of protection of oneself and guarantee of autonomous decisions of oneself can be realized in legal procedures. Given the personal nature of status relationship, it is important to reflect the intention of oneself in legal procedures and, thus, it may be reasonable that limited capable persons are assigned of litigation capacity in principle when they have mental capacity. It is clear that adult guardianship is a double-edged sword and that stronger procedural guarantee is not always favorable, but the Domestic Litigation Act should be revised in order that the substantial law that has been introduced for utilization of remaining capacity of oneself can accomplish its intended goals. Assigning limited capable persons with litigation capacity is to guarantee the position of the principal agent of legal procedures not the object of procedure, and thus it may be associated with human rights based on dignity of individual. Therefore, in domestic litigations, limited capable persons should be able to carry out a lawsuit as the person directly involved when they have mental capacity. Now it is time not to substitute carrying out a lawsuit of limited capable persons by a legal representative but to prepare measures of supplementing capacity of performing litigation and of supporting performance of litigation of oneself.