선결문제로 인한 소송절차의 중지 - 독일 민사소송법 제148조를 참고하여

Aussetzung des Verfahrens bei Vorgreiflichkeit

Suspension of litigation proceedings means stopping the progress of a procedure when an obstacle arises for the court or a party that makes it impossible to proceed with the litigation, or when a reason arises that makes it inappropriate to proceed with the litigation in relation to other procedures. The Korean Civil Procedure Act stipulates the reasons for suspension of litigation proceedings in Articles 245 and 246, and stipulates cases where proceedings are suspended in other laws. On the other hand, it is a question of whether the court can order the suspension of the proceedings even when the trial results of other civil cases or criminal cases are in a pre-determined relationship. In this regard, the German Civil Procedure Act recognizes the system of suspension of pleading due to pre-determined relations (Article 148 of the same Act), but our Civil Procedure Act does not have a pre-determined provision. Nevertheless, many opinions say that in this case, the procedure can be ordered to be stopped for interpretation, and some argue that it is necessary to introduce a general suspension system for pre-determined relations such as Article 148 of the German Civil Procedure Act for legislative purposes. In practice, the court exercises its right to direct litigation and effectively suspends the trial by setting a later date and waiting for the trial results of the relevant case. In order to recognize the suspension of litigation procedures due to pre-determined relations in interpretation or to introduce legislative theories, it is considered meaningful to examine the provisions of Article 148 of the German Civil Procedure Act and the interpretation theory thereof. In this article, we first outlined the general suspension system of litigation procedures, examined the provisions of Article 148 of the German Civil Procedure Act and its interpretation theory, and then reviewed the necessity of legislation and the case of suspension due to pre-determined relationships in individual cases, especially focusing on set-off.