사해방지참가의 적법요건에 관한 고찰

“Third-party intervention to prevent an act of fraud” was first established under Japan’s previous Civil Procedure Act. This Act provided for both third-party interventions for purposes of claiming a right and third-party interventions for purposes of preventing an act of fraud; and these provisions were imported into the Korean Civil Procedure Act with no changes made thereto (other than for the fact that the order of these provisions were reversed). In this paper, the author reviews the legislative history and evolution of the relevant provision and identifies the following as the legal elements for third-party intervention to prevent an act of fraud: First, a review of the legislative history reveals that this provision was based on the theory of fraudulent intent. This, however, does not mean that the existence of fraudulent intent among the plaintiff and the defendant in a lawsuit is in itself sufficient to permit third-party intervention to prevent an act of fraud; rather, such intervention is permitted only if there is also a risk that the outcome of said lawsuit may have a detrimental effect on the interests of the third-party. In other words, although the provision is based on the theory of fraudulent intent, third-party intervention to prevent an act of fraud is permitted only if there is (i) a fraudulent intent, and (ii) an actual risk of harm to the third-party’s interests. In this sense, it may be said that the theory of fraudulent intent relied on by this provision is one of which scope has been broadened to a certain extent. Further, the determination of fraudulent intent is not a subjective one, but an objective one – i.e., whether, from the perspective of an ordinary person, such intent may objectively be said to exist. In connection therewith, a review of the relevant case law shows that courts make such determination by taking into account the attitude of the litigants, the claims made by the litigants and the third-party seeking to intervene, the evidence offered in substantiation of such claims, and the overall thrust of legal arguments. It is highly likely that the factors for determining the objective existence or non-existence of fraudulent intent will become more refined with the accumulation of relevant case law. Second, insofar as third-party intervention to prevent an act of fraud is concerned, case law holds that such intervention is appropriate even if the claims of the plaintiff and those of the third-party intervener are at odds with each other. Third, regarding the issue of whether, in the case of a third-party intervention to prevent an act of fraud, the claim of the third-party intervener must be at least as independent a claim as that of the plaintiff, the answer is no – such intervention should be permitted even if the third-party’s claim consists merely of a request for dismissal of the plaintiff’s claim against the defendant. Fourth, third-party intervention to prevent an act of fraud may be permitted if there is a need to dispose of the plaintiff’s claim and the third-party intervener’s claim in the same manner.