[특별대리인선임][집35(3)특,573;공1988.1.15.(816),168]
If an incompetent requests a divorce trial, whether the application for the appointment of a special representative is made (affirmative)
In accordance with Article 29 of the Personnel Litigation Act, a person who is able to conduct the procedural acts with the consent of the legal representative or family council shall have at least the capacity to conduct the procedural acts, so, an incompetent who is incapable of performing the procedural acts by himself/herself without the consent of his/her legal representative or family council is unable to conduct the procedural acts by himself/herself, and thus, if a legal representative is unable to do so unless he/she is represented by his/her legal representative, the person may apply for the appointment of a special representative pursuant to Article 58
Supreme Court Order 84 Swiss12 Decided May 30, 1984
[Judgment of the court below]
Seoul High Court Order 87BB4 dated June 23, 1987
The original decision is reversed, and the case is remanded to the Seoul High Court.
In light of the reasoning of the order of the court below, the court below rejected the petition of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case as the principal's father, his wife and 1, who is his wife as the respondent, since the principal of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of non-party 2, who is an applicant's death ability and has no mental capacity and who is not a special representative for the principal of this case of this case of this case of this case of this case of this case of non-party 2,
Article 29 of the Personnel Litigation Act provides that an incompetent person may conduct a litigation with the consent of the legal representative, and where his legal representative is a non-party, he may conduct the litigation with the consent of family council. However, as such, at least the person who is able to conduct the litigation with the consent of the legal representative or family council, a person who is unable to perform the litigation with the consent of the legal representative or family council, such as this case, is unable to conduct the litigation by himself without the consent of the legal representative or family council, and therefore, if the legal representative is unable to conduct the litigation unless the legal representative is represented, the legal representative shall be recognized. In such case, if there is no legal representative or it is impossible to exercise his right of representation, the party may apply for a special representative pursuant to Article 58 of the Civil Procedure Act (see Supreme Court Order 84S1
The court below rejected the petition of this case by applying the general theory that the lawsuit of divorce, etc. is not linked to a person without mental capacity as in this case. The court below erred in the misapprehension of the legal principles of Articles 29 and 13 of the Personnel Litigation Act and Article 58 of the Civil Procedure Act, and there is a ground for re-appealing this.
Therefore, the original decision is reversed, and the case is remanded to the Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Jong-sik (Presiding Justice)