訴訟係屬論 一顧

A Study on Pendency of a Lawsuit

In this article, I overviewed the precedents and the common view regarding the concept and the timing of pendency of a lawsuit, examined the theoretical and comparative legal issues, and examined the consistency of the precedents and the common view with the provisions of the Code of Civil Procedure relating to pendency of a lawsuit. In doing so, I demonstrated the problems with the following views; the view that pendency of a lawsuit occurs only when the defendant is served with a copy of the complaint and a three-way legal relationship among the plaintiff, the defendant and the court is established; the view that pendency of a lawsuit occurs upon service of the complaint, which can only be argued under the rules of the German Code of Civil Procedure and the Meiji(明治) Code of Civil Procedure in Japan, even though our rules on filing and pendency of a lawsuit differ significantly from those of those countries; and the view that such a view is inconsistent with the rules of the Code of Civil Procedure Article 40 on the effect of transfer of an action, Article 53 on selected parties, Article 62 on special representatives for incapacitated persons, Articles 71 and 72 on auxiliary participation, Articles 81 and 82 on participation and acquisition of proceedings by successors, Article 84 on notice of proceedings, Article 233 on discontinuance and succession of proceedings due to the death of a party, Article 259 on the prohibition of duplicate filings, and Article 267 on the effect of Withdrawal of Lawsuit. In addition, if we consider the time when the pendency of a lawsuit occurs as the time of filing the lawsuit(the filing of the complaint), the problems that arise when interpreting the provisions of the Civil Procedure Act related to the pendency of a lawsuit(especially the rules on the suspension and continuation of proceedings due to the death of a party, the prohibition of multiple filings, and the effect of withdrawal of lawsuit) in accordance with the precedents and the common view can be completely resolved. Accordingly, I propose as a conclusion that a pendency of a lawsuit should be viewed as occurring when a lawsuit is filed.