What is the subject matter of litigation?
The subject matter of litigation (Streitgegenstand) is what the court adjudicates: the plaintiff's claim. Whether two claims share the same subject matter decides duplicate-suit bans (Korean Civil Procedure Act art. 259), amendment of claims (art. 262), joinder, the objective scope of res judicata (art. 216) and the bar on refiling after withdrawal (art. 267(2)).
The traditional theory
Inherited from German common-law doctrine, the traditional theory treats the subject matter as the assertion of a substantive-law right or legal relationship. If the asserted right differs, the subject matter differs even when the relief sought is identical.
Examples: concurrence of claims
- An injured taxi passenger's contract claim and tort claim for the same loss are separate subjects of litigation.
- Claims to register transfer of the same property based on sale and on prescriptive acquisition are separate.
- A claim on a promissory note and on the underlying debt are separate.
Consequences
| Issue | Result under the traditional theory |
|---|---|
| Duplicate suits | Parallel suits on different rights are not duplicates. |
| Amendment | Switching the legal basis is an amendment of the claim. |
| Res judicata | Losing on contract does not bar a later tort suit. |
| Scope of judgment | Granting relief on an unasserted right may violate the principle of party disposition. |
Case law and evaluation
The Korean Supreme Court generally follows the traditional theory while limiting repeated litigation through res judicata, good faith and alternative joinder. The theory fits the substantive-law system and gives a clear object of judgment, but it allows one dispute to generate several suits and burdens plaintiffs with legal characterization. These criticisms produced the new theory.
References
- 민사소송법 제216조, 제259조, 제262조, 제267조 (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.