Background
Under the traditional theory, one dispute could spawn several suits because each legal basis was a separate subject matter. In 20th-century Germany, scholars such as Rosenberg and Schwab argued that the subject matter should be defined in purely procedural terms, producing the new theory.
Variants
| Variant | Criterion | Features |
|---|---|---|
| One-element theory | Relief sought only | The same performance sought is one subject matter even if facts differ; facts supplement it for money claims. |
| Two-element theory | Relief sought + facts | A difference in either means a different subject matter. |
| New substantive-law theory | Revises the substantive concept of a claim | Concurrent claims from one set of facts form a single claim. |
Compared with the traditional theory
| Example: passenger's damages | Traditional | New |
|---|---|---|
| Contract and tort | Two subjects | One subject (different legal viewpoints) |
| Changing the legal basis | Amendment of claim | Change of argument |
| New suit on another right after losing | Not barred | Barred by res judicata |
| Court's ruling | Limited to asserted right | May rely on unasserted legal grounds |
Evaluation
- Pros: one-time dispute resolution, procedural economy, and the principle that applying the law is the court's job.
- Cons: broader res judicata may surprise plaintiffs, and the one-element theory can blur identification of the claim.
Many Korean scholars favor the new theory, but the Supreme Court basically keeps the traditional view, managing repeat suits through res judicata, standing and interest to sue and good faith.
References
- 민사소송법 제216조, 제259조, 제262조 (국가법령정보센터 law.go.kr).
- 이시윤 (2023). 『신민사소송법』 (제16판). 박영사.
- 정동윤·유병현·김경욱 (2022). 『민사소송법』 (제9판). 법문사.
- Rosenberg, L., Schwab, K. H., & Gottwald, P. (2018). Zivilprozessrecht (18. Aufl.). C.H. Beck.
- Schwab, K. H. (1954). Der Streitgegenstand im Zivilprozeß. C.H. Beck.