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The Allowability of the Alternative/Selective Joinder of Parties or Additional Joinder Party, and the Limitation thereon

  • DONG-A LAW REVIEW
  • 2016, (73), pp.83-118
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

황형모 1

1동아대학교

Accredited

ABSTRACT

In the process of a lawsuit which started from filling a written complaint, there occurs such an event where the change or addition of not only the claim but also the party (especially the defendant) is required. In case of the preliminary or selective co-litigation, the question arises where the claims can not withstand each other. The courts in the cases view that the alternative or selective co-litigation is established not only where the claims can not withstand each other based on the substantive law but also where they can not withstand based on the procedural law and based upon the facts in the case or the evaluation on the facts. However, in terms of procedural laws, where the claims can not withstand in acknowledging the party’s capacity, it does not mean that the claims do not withstand. There the withstanding should not be allowed because it is against the notion of litigation economy and effectiveness and the change of the precedent case is requested. In case where the claims may not withstand together based upon the facts, the cases acknowledging the withstanding is proper because it is due to the application of the substantive law. However even in such a case where the case acknowledging the facts or acknowledging selective facts allows the alternative selective joint litigation, such litigation may not be initiated abusively where there is dispute over the facts and the liable party may change and the factual situation should be constructed precisely so that the claims may not legally withstand together. Next, though it is the majority view to understand that the courts in the cases did not allow additional participation by acquisition, it is proper to understand that the courts’ position in cases is to allow the same in limited circumstances. Therefore the attorney representing the case does not have to be negative to the application for the participation by acquisition and it is proper to allow the same for the purpose of the litigation economy and one time resolution of the dispute like the majority academic theories. However, it should be viewed as limited to the cases where the obligations (or rights) acquired by the assignee are derived from assignor’s’ rights or obligations which are the subject matters of the litigation or arise subject to the existence of the same.

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