B. The legislative intent of the litigation system to allow the other party to inspect the case where the other party dies in a family relationship lawsuit

C. Where a divorce trial has become final and conclusive, whether it is reasonable to allow a public prosecutor to take over the lawsuit, if the claimant has died or the claimant to become the respondent for retrial has died during the proceeding of the retrial lawsuit and the party who was the respondent for retrial has died (affirmative)

D. Measures to be taken by the first instance court when the applicant for divorce died, although there was a ground for retrial during the continuation of the first instance trial after the divorce adjudication became final and conclusive.

B. In the case of a property dispute, unlike the case of a property dispute, a person who is the other party to the lawsuit dies, and the legal relation is not inherited and there is no other person to become the other party to the lawsuit, it is prepared to correct it by means of filing a lawsuit with the representative of the public interest for the benefit of the majority interested parties in the case where there is no other party to the lawsuit. This is contrary to the public interest in the case where there is an illegal status relationship, leaving it alone for the reason that there is no specific other party to the lawsuit, which is contrary

C. In light of the legislative intent of the litigation on the status relationship as referred to in Paragraph (b) above, if a judgment on divorce has become final and conclusive and there exists a cause for a retrial for the trial, the status relationship formed by such final and conclusive judgment (reasonable removal of marital relations) is unlawful, and it is reasonable in the public interest to extinguish its validity by cancelling the final and conclusive judgment through retrial. Therefore, in a case where the claimant who is to be the claimant for retrial dies, it is reasonable to interpret that the above provisions may apply mutatis mutandis to a lawsuit against the public prosecutor in the event that the claimant who is to be the claimant for retrial is a person who is the original claimant for the lawsuit during the continuation of

D. If an applicant for divorce during the period of the first instance trial of a divorce lawsuit as to a divorce trial died, the first instance court should have had the public prosecutor take over the status of the applicant rather than having the applicant take over the applicant, and should have the prosecutor take over the status of the applicant, and if it is found as a result of the hearing that there is a ground for retrial, the adjudication subject to retrial should be revoked. At this stage, the court should have declared that the litigation was terminated due to the death of one of the married couple, as the subject matter has been lost.

The Seoul Family Court shall revoke the judgment of the first instance, and the case shall be remanded to the Seoul Family Court Panel Division.

According to the records, at the Seoul Family Court case 88D25691, where the deceased claimant becomes the claimant and the defendant is the respondent, the request for retrial of this case is cancelled and the above court seeks to dismiss the claim for divorce on the ground that there is a cause for retrial against the final judgment rendered in favor of the claimant on November 22, 1988. On November 16, 1989, where the retrial case of this case is pending in the first instance court (hereinafter referred to as "responding claimant"), the respondent (hereinafter referred to as "responding claimant") died, the respondent filed an application for change of indicating the claimant as the defendant, and the first instance court affirmed the procedure on the premise that the status of the claimant was taken over to the above inheritors, and the first instance court declared that one party was deceased, and the above judgment was terminated upon the death of the claimant on the merits of the lawsuit, and the court below, as a matter of course, can be seen to have had no effect on the grounds for retrial within the scope of a cause for retrial as a right to request for retrial of the final and conclusive judgment within the procedure.

However, the judgment of the court below that the status of a party to a retrial, such as marriage, cannot be inherited due to its nature, and that even if one of the parties to a retrial in a lawsuit for divorce, such status as a party to a retrial, is not of the nature of inheritance, even if the other party to the lawsuit for divorce died, since the other party to the lawsuit for divorce took over the lawsuit for divorce, it is not clear that the other party to the lawsuit for retrial will take over the lawsuit for retrial. Therefore, the judgment of the court below that the judgment of the court of first instance, which held that the status of an appellant as an appellant due to the death of the claimant, was unlawful, should be justified, but if the retrial was instituted after

Unlike property disputes, if a person who is the other party to a lawsuit dies and his legal relations are not inherited, and there is no person who is the other party to a lawsuit, it is prepared to correct them by means of filing a lawsuit with the representative of the public interest for the benefit of the majority interested parties (Article 849, 864, and 865 of the Civil Act, etc.). Article 26(3) of the former Personnel Litigation Act, which is applicable in this case, is against the public interest to leave it alone for the reason that there is no specific other party to a lawsuit. Thus, it would be reasonable to allow a public prosecutor to file a lawsuit against the representative of the public interest, and it is reasonable to establish a system to resolve res judicata by the method of retrial in a specific case where the civil litigation system has been established to respect the effect of res judicata until the judgment reaches the judgment and to maintain the effect of res judicata by an appellant's final judgment in light of the purport of the new trial system and the purport of the new trial procedure, if there is no specific other party to a lawsuit for retrial (Article 24(3).

The court below cited the theory that a judicial divorce lawsuit is terminated, on the ground that the lawsuit of this case is terminated, in the event that one of the parties to a lawsuit is deceased during the course of the proceedings, the status of the lawsuit is not inherited, but the prosecutor is not taken over. However, in the case of a judicial divorce lawsuit, the court below held that it is impossible to divorce after the death of the party concerned since the state of marriage was legitimate until the death of the party concerned. Thus, such theory does not apply to a retrial

In this case, since the claimant died during the continuance of the first instance trial, the first instance court should not have the heir of the claimant take over the claimant, but should have the prosecutor take over the status of the claimant and examine the existence of the grounds for a retrial. If there is a ground for a retrial as a result of the hearing, the trial subject to a retrial should be revoked. At this stage, the court should have declared that the lawsuit was terminated due to the death of one of the married married couple, because it was lost the object of the lawsuit due to the death of one of the married couple.

Therefore, the court below should have cancelled the judgment of the court of first instance which was tried and judged by having the heir, who is unable to inherit the status of the claimant take over, and remanded the case to the court of first instance, and had the prosecutor take over the litigation procedures.

Ultimately, the decision of the court below, which declared that the lawsuit for retrial was terminated by the claimant's death, is erroneous in the misapprehension of legal principles as to the standing to sue in a divorce lawsuit, and thus, the judgment of the court below shall be reversed as it cannot be maintained in this respect, and this case is sufficient to see the party members, so the judgment of the court of first instance shall be revoked and the case shall be remanded to the court of first instance. It is so decided

Justices Kim Yong-sung (Presiding Justice)