소송무능력자에 대한 송달의 효력과 구제방법

독일 민사소송법과의 비교를 중심으로

Although Article 179 of the Civil Procedure Act stipulates that service on a person incapable of litigation must be made to it’s legal representative and Article 55 of the same Act stipulates that only a legal representative can act for a person incapable of litigation, if a court served a judgment on a person incapable of litigation without knowing that it was incapable of litigation, there is a question of whether the appeal period proceeds and the judgment becomes final despite the invalid service. The Supreme Court believes that the appeal period does not proceed because the service of a judgment on a person incapable of litigation is ineffective. Regarding this, the German Federal Supreme Court, in view of the provisions of the retrial action and the request for legal stability, considers that the appeal period proceeds if the court does not know from the written judgment that the person is incapable of litigation despite invalid service on the person incapable of litigation. The German Civil Procedure Act, unlike Korean Civil Procedure Act, excludes the supplementary nature of retrial in relation to the appeal. Therefore, under the German Civil Procedure Act, a person incapable of litigation who has been served with a judgment can fight the judgment by appeal, or can contest the judgment by retrial after confirming the judgment as it is. The German Federal Supreme Court, citing these legal provisions, recognizes the validity of the service of judgment on a person incapable of litigation and hold the position that the retrial proceedings does not hinder the guarantee of the person's right to request a legal hearing. But the Korean Civil Procedure Act does not have a provision recognizing the independence of the retrial proceedings. Because the service on the person incapable of litigation is invalid in accordance with Articles 179 and 55 of the Civil Procedure Act, the appeal period does not proceed. Even if an appeal is filed and then withdrawn, the judgment is not finalized and another appeal may be filed again. If a judgment ignoring the flaws in litigation capacity is finalized as a supreme court judgment, it can be contested by a retrial (§ 451 I ③ Civil Procedure Act). If the court clearly recognizes a party’s litigation capacity and the service of the judgement is made on that party, the appeal period proceeds and an appeal or a retrial can be contested (§ 394 I ④, § 451 I ③ Civil Procedure Act). In this case, the supplementary nature of a retrial action(§ 451 I proviso Civil Procedure Act) does not apply to guarantee the procedural right of the person incapable of litigation.