B. Effect of revocation of an application for provisional disposition against prohibition of disposition filed by the plaintiff's attorney by deceit of the defendant

(c) Method of denying the validity of litigation by means of another person's criminal act;

B. Although the Plaintiff’s legal representative revoked the application for provisional disposition prohibiting disposition by mistake by the Defendant’s deception and submitted the revocation of execution, it is not reasonable to apply the provisions of Articles 109 and 110 of the Civil Act to the litigation act. Therefore, even if the revocation of the application for provisional disposition by the said Plaintiff’s legal representative was caused by another person’s act subject to criminal punishment such as fraud and coercion

C. Even if the litigation was conducted due to the act of another person subject to criminal punishment such as fraud and coercion, it is reasonable to interpret that the validity may be denied by analogical interpretation of the provisions of Articles 422(1)5 and 422(2) of the Civil Procedure Act only when the conviction against the act of the other person becomes final and conclusive and the act of the other person exists externally without the corresponding intent. Therefore, the validity of the litigation cannot be asserted if the criminal act of the other person is limited to the extent that the act of the other person causes mistake in the course of the litigation and there is an intention corresponding to the litigation.

1. On the first ground for appeal:

According to the reasoning of the judgment below, the court below found that the land of this case at Won-si was originally owned by the plaintiff, and transferred the registration of ownership transfer under the name of defendant 1, who was the plaintiff's wife at April 23, 1973 as at the time of the title trust, and as a result, the plaintiff entrusted the above land to the non-party Kim Jong-sung legal representative, and the non-party, as the plaintiff's legal representative, filed an application for provisional disposition of prohibition of disposal of the above land with the Daejeon District Court on June 15, 1979 against the same defendant for provisional disposition of prohibition of disposal of the above land, and filed a lawsuit for provisional disposition of prohibition of disposal of the above land on June 18, 197, and the provisional disposition of prohibition of disposal of the above land was completed on the ground that the plaintiff's claim was rejected by the defendant in the above lawsuit on the above merits, and the plaintiff's application for provisional disposition against the non-party 1 and the non-party 2, who violated the above law of prohibition of disposal of the above land was dismissed by the plaintiff 1 and the above.

2. On the second ground for appeal:

Although an attorney has the effect of litigation as an act of litigation conducted by himself/herself within the scope of his/her power of representation, even if the litigation was conducted by mistake by deception of the other party, its validity as an act of litigation conducted by himself/herself cannot be denied. Since the provisions of Articles 109 and 110 of the Civil Act are not applicable to the act of litigation conducted by himself/herself, even if the act of litigation was conducted by another person subject to criminal punishment such as fraud and coercion, it cannot be denied for this reason. However, in a case where a judgment of conviction of the other person subject to criminal punishment becomes final, the validity of the act of litigation may be denied by analogical interpretation of the purport of Article 422(1)5 and (2) of the Civil Procedure Act. However, even in this case, it is reasonable to interpret that its validity can be denied only when the act of litigation exists externally only without the intention corresponding thereto. Thus, it is merely to the extent that the act of litigation was done by mistake, and if there is an intention to conduct the litigation, the validity of the act of litigation shall not be asserted.

However, examining the facts duly established by the court below in comparison with the records, the non-party Kim Jong-sung attorney, the plaintiff's legal representative, can not deny the effect of the cancellation of the above provisional disposition application for this case's land by mistake, which is the other party's deception, and the plaintiff's legal representative can only revoke the application for the provisional disposition of this case's land and submit its execution cancellation sources, and further, it cannot be viewed that the defendant 1, the legal representative of the defendant Kim Jong-sung, did not have any intent corresponding to the cancellation of the above provisional disposition application for this case's land's act of deception (the same defendant was convicted of embezzlement) or there was no intention corresponding to the cancellation of the above provisional disposition's claim for this case's act of deception, and it is obvious that the plaintiff delegated his authority to cancel the provisional disposition application for this case's land's land's land's act to Kim Jong-sung attorney. However, the court below erred by misapprehending the legal principles as to the above provisional disposition's act of deception No. 2, which affected the judgment's judgment of this case's illegality.

3. Therefore, without determining the remainder of the grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the Seoul High Court which is the original court. It is so decided as per Disposition by the assent

Justices Kim Young-ju (Presiding Justice)