필수적 공동소송과 소의 취하

Indispensable Co-Litigation and Withdrawal of Lawsuit

In principle, the withdrawal of a lawsuit is free (Article 266 of the Civil Procedure Act). However, in the case of co-litigation involving multiple parties, the question arises as to who can withdraw the lawsuit and whether the withdrawal of a single co-plaintiff is effective. There is no dispute in the interpretation that in the case of ordinary co-litigation, a single co-plaintiff can validly withdraw his or her lawsuit pursuant to Article 66 of the Civil Procedure Act (the principle of independence of co-plaintiffs) and in the case of preliminary co-litigation, pursuant to the proviso to Article 70, Paragraph 1 of the same Act. The general theory and precedents state that in an indispensable co-litigation for substantive reasons, one co-plaintiff cannot withdraw the lawsuit, but in an indispensable co-litigation for procedural reasons, one co-plaintiff can withdraw the lawsuit. However, regarding this issue, there may be room for interpretation disputes, especially regarding whether withdrawal of a lawsuit is a disadvantageous litigation act (Article 67, Paragraph 1 of the Civil Procedure Act) or a litigation act related to the demand of uniformly established legal relationship at issue, and whether it is appropriate to restrict the plaintiff's freedom to withdraw a lawsuit, which is recognized under the principle of dispositional rights, for the benefit of other joint plaintiffs who wish to resolve the dispute through litigation. The purpose of this article is to comprehensively address issues related to indispensable co-litigation and withdrawal of a lawsuit. Specifically, it criticizes the prevailing theory and precedent that do not permit the withdrawal of a single co-plaintiff in indispensable co-litigation for substantive reasons, and argues for the appropriateness of allowing such withdrawal. Meanwhile, the withdrawal of a lawsuit by one co-plaintiff or by one co-defendant in co-litigation corresponds to the partial withdrawal of the lawsuit. Therefore, this issue also involves the debate on whether partial withdrawal of a lawsuit is permissible in an indispensable co-litigation. Furthermore, the prevailing view is that since partial withdrawal of a lawsuit is permitted in an indispensable co-litigation for procedural reasons, a presumed partial withdrawal of a lawsuit due to the absence of both parties is also permissible. Therefore, even if one co-plaintiff appears at the hearing to argue, Article 67, Paragraph 1 of the Civil Procedure Act is excluded, and the provision on presumed withdrawal of a lawsuit (Article 268 of the Civil Procedure Act) applies to the absent co-plaintiff. This article critically examines the prevailing view on this issue and presents the author's own opposing view.