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Identification of Parties in Civil Procedure

⚖️ Law By CampusDown Wiki Editorial Team Last updated
Quick answer: identifying the parties means deciding who the plaintiff and defendant are; Korean doctrine and courts follow the designation theory, reading the whole complaint reasonably.
Contents
  1. 1. Meaning
  2. 2. Theories
  3. 3. Problem cases
  4. 4. Correction vs substitution
  5. 5. References

Meaning

Identifying the parties determines who the plaintiff and defendant are. Once identified, courts examine capacity to be a party, litigation capacity and standing; identification asks "who", standing asks "is it the right person".

Theories

  • Intention theory: whom the plaintiff or court intended; often unclear.
  • Conduct theory: whoever acted or was treated as a party; only determinable afterwards.
  • Designation theory: the complaint's designation, read as a whole including the claims (substantive designation theory), followed by doctrine and courts.

Problem cases

  • Suit in another's name: the impersonated person is the party; the suit is dismissed if discovered, and a final judgment can be challenged by retrial.
  • Suit against a deceased person: generally unlawful, but courts allow correcting the designation to the heirs when they were the real intended defendants.

Correction vs substitution

Correcting an error while identity is preserved is allowed; substituting a different person is permitted only where the Civil Procedure Act provides, e.g. Article 260 on changing defendants.

References

  1. 「민사소송법」 제260조.
  2. 이시윤. (2024). 『신민사소송법』(제17판). 박영사.
  3. 정동윤, 유병현, 김경욱. (2023). 『민사소송법』(제10판). 법문사.
  4. 호문혁. (2020). 『민사소송법』(제14판). 법문사.

Reports and materials that use this theory (Korean)

There are no materials dedicated to this theory yet, but you can search related reports in the CampusDown library (Korean).

Find more reports · Search '당사자 확정 이론' on CampusDown →

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This article was last updated on October 15, 2026. It is based on widely recognized original works and textbooks; when citing it in a paper, please check the original sources listed in the references.