2013, Vol.1, No.2

Legal Theory & Practice Review 2023 KCI Impact Factor : 1.03

pISSN : 2288-1840
https://journal.kci.go.kr/kltp

The service in civil procedures is very important procedurally enough to be called the beginning and the end of the lawsuit. That is because in the case of working the service of litigation documents well, a fair, fast, and cost-effective action is realized and the remedies for infringement of the rights of the parties is to guarantee. But there are many cases that the service of documents is impossible, by one party’s refusing to receive the documents for the purpose of litigation delay or interference with the exercise of rights of the other party In that case the service is carried out once or twice more in practice. Nevertheless, if the delivery of these services is also disabled, then the service by publication is done. But in this case carrying out the service by publication does not fit the legal requirements, in addition to the method of the service by publication, in fact, there is no other measures. In this thesis, firstly I investigated the various methods of the service allowed in the current law and the effect of the service, and then pointed out the problem that there is no other measures in addition to the method of the service by publication in the case of inability to service, especially by the party’s refusing to receive the documents on purpose. Finally I would like to propose some advisable measures about the problem, the revision of the act and the positive attitude of the courts for instance.

In case the tort is established by the claim infringement by third party, the arguments that whether creditor’s compensation for damages are asked for the ex-post remedies, is almost cleared. As an ex-ante remedy, the claim for removal of disturbance, a relative right of claim unlike property right, can be recognized in the case of claim is invaded. As of current court opinion and scholarly dogma coincidently alleged that the claim for removal of disturbance is not allowed in the right of claim because it is not recognized countervailing even it is discussed with former digress. In addition, precautionary and preliminary injunction to make temporary status under the civil execution act can be taken but Korean court did not accept this action by the reason of no legal ground. If it is so, the injunction that is precautionary and preliminary remedy which arising from tort law may be imaginable. For this possibility, majority opinion affirmed this allegation even statute is not provided, and the claim infringement by third party is also acknowledged. Only, a little argument aroused concerning whether such an argument is approved unlimitedly under the affirmation. The ultimate goal of the right of prohibition, each nation’s trend of court decision and legislation case, judge’s discretion in motion case, violation of good faith exercising of the right of prohibition or considering the control of abuse of rights, there is no need to admit these right because even if unlimitedly allowed this right of legal ground, it will not be a big issue.

The voluntary guardianship is a contract in which one selects a nominee in advance for preparing the time when losing judging ability in the future and then grants the right of representation for a work such as property management to him when one has again judgment ability. Such voluntary guardianship system is the fittest system for the realization of a mandator's intention, who has the declined judgment ability, because it is based on the idea of respecting the right of self-determination. A voluntary guardian supporter must respect one’s own intention and do both one’s property management and protection of one’s body when conducting his work. For doing well the work of his property management and protection of his body, it is important to correctly find his intention. However, his intention could not be found correctly always. Therefore, that his intention could be realized as one specifies his intention in an authentic document when making the voluntary guardianship contract with a nominee is important. So this article examined comparatively, focusing on such problems.