‘원고는 소를 취하하고, 피고는 이에 동의한다’는 내용의 화해권고결정의 효력

Abstract

This article raises questions about the judgment of the Supreme Court 2018 Da 230229 sentenced on July 29, 2021, which held that the decision to recommend a settlement that ‘the plaintiff withdraws the lawsuit and the defendant agrees thereto’ has the same effect as the withdrawal of the lawsuit and reviews the essence of the decision of recommendation for settlement through the legislative intent and comparative legal analysis.
 Considering the legislative purpose of the decision of recommendation for settlement and the similar systems in Japan and Germany, the decision cannot be regarded as a special type of judgment.
 The purpose of the decision of recommendation for settlement is to settle disputes amicably between the parties by giving authority and credibility to the court's recommendation for reconciliation, and the basic framework is that it takes effect only when the parties do not file an objection, and its effect is the same as that of a settlement in litigation. The decision of recommendation for settlement is substantially the same as the court's presentation of a settlement clause or a compromise proposal. Therefore, the content of the decision of recommendation for settlement should be the same as that of a settlement in litigation.
 When the subject of litigation itself is a matter requiring a legal relationship to be formed through judgment, the parties cannot freely dispose of the subject, and, therefore, a decision of recommendation for settlement is not permitted. The requirements for litigation are matters related to public interests, not private interests, and should be investigated ex officio. They do not fall under matters that the parties can freely dispose of, so a decision of recommendation for settlement is also not permitted.
 An agreement between the parties only to terminate the lawsuit is only a withdrawal of the lawsuit and its consent, but it does not fall under the settlement of the lawsuit, and it should be treated as a withdrawal of the lawsuit according to the intention of the parties. The decision to recommend a settlement stating that ‘the plaintiff withdraws the lawsuit and the defendant agrees thereto’ should also be regarded as illegal and ineffective.
 An arbitrary decision of recommendation for settlement which only aims to resolve disputes expeditiously must be avoided.