변론능력에 관한 분석적 검토 -대법원 2023. 12. 14. 자 2023마6934 결정을 계기로

초록

The ability to plead is generally referred to as the capacity or qualification necessary for a party to participate in court proceedings and to effectively carry out action (especially oral argument) in a relationship with the court. Its purpose is understood as qualifications or capabilities due to the public interest need to facilitate and expedite the proceedings and to ensure the sound operation of the judicial system, which are different from the capacity to litigate. However, in the principle of compulsory lawyers such as Germany, even if a party has the capacity to litigate, he or she cannot engage in legal proceedings and make arguments, so the difference between the capacity to litigate and the ability to plead is clear. On the other hand, the Korean Civil Procedure Act did not adopt the principle of compulsory lawyers, so if the person has the capacity to litigate, the party's own arguments are not prohibited. While passively evaluating the meaning of the ability to plead, they do not place much importance on the ability to plead. There are no active provisions in the Korean Civil Procedure Act regarding the ability to plead, and Article 144 of the Civil Procedure Act only restricts the ability to plead in specific cases where the ability to plead is an issue. Article 144 of the Civil Procedure Act prohibits statements made to persons who do not have the ability to plead, orders the appointment of an attorney as necessary, and stipulates court measures such as dismissal of lawsuits when they do not comply. However, the Supreme Court's recent Decision No. 2023 Ma 6934, dated December 14, 2023, made a meaningful judgment on the purpose of Article 144 of the Civil Procedure Act on measures against persons who are not capable of pleading and how the court determines whether it is necessary to prohibit statements or order the appointment of an attorney. Thus, after a historical and comparative legal review on the ability to plead that there has not been sufficient discussion before, a theoretical and analytical review was conducted to actively understand the meaning of the ability to cope with the clarification, and emphasized that the purpose of the ability to plead is not only the public interest request for a speedy and smooth proceeding, but also the protection of the parties' interests for equal treatment of litigation competency.

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