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외국인의 소송상 지위

Foreigners’ position in lawsuits

아주법학 v.6 no.1 , 2012년, pp.111 - 136   http://dx.doi.org/10.21589/ajlaw.2012.6.1.111

Discriminating against foreigners in lawsuits is not permitted (under the second clause, Article 6 of the Constitution). However, this does not mean that a foreigner’s position in a lawsuit must always follow the same regulations as the position of a local citizen. In fact, it is thought that referring to or applying foreign law is necessary considering the liaison with this incident.The capacity of enjoyment of rights for legal procedure laws which generally becomes the Prozessparteienin in a civil suit; in other words,the right of access to courts is called the admissibility of a party.Furthermore, the ability to proceed a civil lawsuit as a Prozessparteienin (or intervention for assistance); i.e., being able to file an effective lawsuit and receive acts of procedures by one’s own efforts is called the litigation capacity.If the subject parties of the lawsuit cannot be a party to the suit then the parties must carry out the lawsuit, and in order to do so, litigation capacity is needed. This is because litigation is more complicated than a judicially trading capacity and thus with a simple mistake one may lose an easy suit. Therefore, to protect subject parties that cannot argue their gains and defend against their opponents, it is important that a certain standard is set so that one who lacks in litigation capacity should be unable to carry out a lawsuit by their own.The admissibility of a party to legal proceedings and litigation capacity each corresponds to capacity of enjoyment of rights and capacity for action respectively. Article 51 of the Civil Procedure Code states that “Bestowment of rights needed for legal representation of a defendant follows the civil law or other legislations if there are no specific regulations regarding the case,”and relates it to the presence of the capacity of enjoyment of rights and capacity for action under the substantive law. Furthermore, Article 57 of the Civil Procedure Code states “If a foreginer does not have litigation capacity according to the law of the domicile, he or she is considered to have litigation capacity if it is acceptable under the legislation of the Republic of Korea.”While article 11 and 13 of the private international law prescribes that a person’s ability and capacity follows the law of the domicile, clause 1of article 15 stipulates that If the inflictor and his opponent were in the same country at the time of the juristic act, the inflictor cannot be seen innocent if he is guilty according to the law of the country and is proved innocent by the law of the domicile. However, if the opponent knew that the inflictor was innocent or could have known so, this does not apply.There are differences between the Civil Procedure Code and the private international law, and it is important how we understand the relationship between the two.Fundamentally, there are two opposing positions in deciding a foreigner’s position in lawsuits. First is the lex fori theory, which is the position that the foreigner’s litigation capacity and admissibility must be based on the law of the forum since bot capacity relates to the parties’qualifications to the mind and body. The second position is personal law theory, which argues that the foreigner’s litigation capacity and admissibility must be based on the law of the foreigner’s hometown since a person’s mind and body is developed based on the area where the person grew up.This manuscript examines centrally on the theories of a foreginer’s position in lawsuits based on the two positions stated above.

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