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(영문) 대법원 1995. 10. 5.자 94마2452 결정

[손해배상(자)][공1995.12.1.(1005),3718]

Main Issues

(a) Whether the order of rejection of the petition of appeal may be issued without undergoing the procedure for the urgent payment of the National Treasury, where it complies with the order of the presiding judge to revise the payment of expenses incurred in serving

(b) The case holding that the effect of the party's selection shall continue until the lawsuit is completed, even if the case name is stated in the selection document as "as to the proceedings of the first instance" after the case name is written;

Summary of Decision

(a) In case where the expenses required for delivery of the petition of appeal are not prepaid, the presiding judge of the appellate court may regard it as the condition of impossible to serve the petition of appeal, and order the correction of the defects within such period, and if no correction is made within such period, he may issue an order to dismiss the petition of appeal. The presiding judge of the appellate court may issue an order to dismiss the petition of appeal without receiving the expenses required for service in subrogation from the National Treasury, or issued an order to dismiss the petition of appeal without stating the name and address of each party

B. If a majority of the parties jointly interested have appointed the parties, the selected parties may conduct the lawsuit on behalf of the parties up to the completion of the lawsuit in question, and the appeal as well as the appeal shall also be filed by such parties. However, the selection of the parties shall also be allowed from the beginning to a certain level, in particular, to the extent that they can cancel and change the future by the agreement of the class of the class.

C. The purpose of the selection party’s system is to simplify and simplify litigation procedures in a number of lawsuits involving the parties, thereby ensuring the efficient progress of the lawsuit. In light of the original purpose of the lawsuit’s execution of the lawsuit by the appointed party up to the completion of the lawsuit as the party, even if there is a statement in the selection document submitted by the first instance court, that “for litigation procedures of the first instance” or “for litigation procedures of the first instance” is stated, barring special circumstances, such statement shall be deemed to be aimed at identifying the case in which the appointed party is selected together with the case name, etc., unless there are special circumstances. Accordingly, the effect of the selection is not limited to the first instance lawsuit, but limited to

It is reasonable to interpret that it continues until termination.

[Reference Provisions]

A. Article 371(b) of the Civil Procedure Act. Article 49 of the Civil Procedure Act

Reference Cases

Supreme Court Order 91Ma620,621 Dated November 20, 1991 (Gong1992,258) dated May 3, 1995 (Gong1995Sang, 2071)

Re-appellant

Appellant 1 and 6 others

The case of the court below

Gwangju High Court Order 93Na3409 dated November 14, 1994

Text

All reappeals are dismissed.

Reasons

The re-appellant's grounds for reappeal are examined.

1. Upon examining the reasoning of the original order and the record, the Re-Appellants filed a lawsuit seeking compensation against the non-party 1 and the non-party 9 as the defendant, and the non-party 2, the non-party 3 and the non-party 1 appointed the above-appellant 1 as the designated party with regard to the first instance court procedure, and appointed the non-party 4 as the appointed party and additionally appointed the non-party 1 as the appointed party. On April 8, 1993, the above court ordered the plaintiff 1, the non-party 4, the non-party 5, the non-party 6 and the non-party 7 (hereinafter the plaintiffs of the first instance court") to dismiss the plaintiff's claim and served the judgment on May 3, 193. The court below notified the plaintiff 1, the court below's order of correction to the non-party 2,280,000 won for the non-party 1 and the defendant 1's legal representative of the court below's order of correction to the plaintiff 2.

2. In case where the expenses required for delivery of the petition of appeal are not prepaid, the presiding judge of the appellate court may regard them as the condition of impossible delivery of the petition of appeal, and order to correct the defects within such period, and if no correction is made within such period, he may issue an order to dismiss the petition of appeal. The presiding judge of the appellate court may issue an order to dismiss the petition of appeal without receiving the expenses required for delivery in subrogation from the National Treasury, or issued an order to dismiss the petition of appeal, or issued an order to dismiss the petition of appeal without stating the name and address

3. Where many persons who have a common interest appoint the parties, the selected parties may conduct the lawsuit on behalf of the parties until the conclusion of the lawsuit in question, and the appeal shall also be filed by such parties, but the selection of the parties shall also be permitted from the beginning to the future, as long as the parties may cancel and change the future by the agreement of the class, and as long as they can obtain the qualifications of the parties, in particular, to the extent that they can be qualified as the parties in any instance.

However, the purpose of the selection party's system is to simplify and simplify litigation procedures in a number of lawsuits involving the parties and to ensure the efficient progress of the lawsuit. In light of the original purpose of the case, even if the selected party's execution of the lawsuit until the completion of the lawsuit is stated in the letter of selection submitted in the first instance court as the case in this case, it is reasonable to interpret that the above designation is to specify the case in which the appointed party is selected together with the case name, etc., unless there are special circumstances, unless there are special circumstances. Therefore, it is reasonable to interpret that the effect of the selection is not limited to the first instance court's lawsuit, but to continue the case until the completion of the lawsuit.

Thus, as seen earlier, the court below's order of correction of the service fees of this case by the presiding judge 2 and 3 of the appellate court is served on the Appointed 1, re-appellant 4 and re-appellant 5, re-Appellant 6 and re-appellant 7, and the above order of correction is deemed to have been served lawfully on all the appellants. Thus, it is legitimate for the appellate court's presiding judge to dismiss the petition of appeal on the ground that there is no correction within the period of order of correction. Therefore, there is no reason to criticize this.

4. In addition, the non-party 1, 2, and 3 among the defendants in the above lawsuit for damages, did not dispute the plaintiffs' claims against the court of first instance, and the decision of the court of first instance that all of the plaintiffs' claims are dismissed is an omission of trial. The appeal in this case was filed against the judgment of the court of first instance even though the re-appellant filed an application for resumption of pleading with respect to the closure of argument in the court of first instance, and the appeal in this case was filed against the dismissal of the immediate appeal and the claim for additional judgment as to the refusal of the resumption of argument in this case were filed by the court of first instance, and the appellate court's examination of the appeal in this case was not illegal. The remaining arguments are not legitimate grounds for re-appeal against the

5. Therefore, all reappeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-tae (Presiding Justice)

심급 사건
-광주고등법원 1994.11.14.자 93나3409
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