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