[이혼및재산분할][집42(2)특,438;공1994.12.1.(981),3126]
A. Whether the lawsuit is terminated when one of the parties dies while the divorce lawsuit is pending
B. Whether, in the case of “A”, a divorce lawsuit is terminated with a combined claim for division of property
A. Since the right to claim a judicial divorce is the right under the binding force of the couple, the heir may not take over the procedure when one spouse dies while the divorce lawsuit is pending, and in such a case, there is no special provision that the prosecutor may take over it, and thus the divorce lawsuit is terminated.
B. In a case where a divorce lawsuit and a claim for division of property are combined, the claim for division of property incidental to the divorce lawsuit, on the premise of the establishment of divorce, shall be lost when one spouse dies, and is terminated at the same time as the divorce lawsuit is terminated.
A. B. Article 211 of the Civil Procedure Act: Article 24 of the Family Litigation Act (Article 839-2)
A. Supreme Court Decision 85Meu27 delivered on September 10, 1985 (Gong1985, 133) 90Meu1135 delivered on May 26, 1992 (Gong192, 2019), Supreme Court Decision 92Meu143 delivered on May 27, 1993 (Gong193Ha, 182)
[Judgment of the court below]
Defendant 1 et al., the taking over of the lawsuit of the deceased Nonparty
Daejeon High Court Decision 93Reu100 (Main Office) decided January 14, 1994 (Counterclaim)
The judgment of the court below is reversed.
The principal lawsuit and counterclaim of this case are terminated upon the death of the defendant of the original judgment on December 28, 1993.
The costs of appeal shall be assessed against the plaintiff (Counterclaim defendant).
We examine the grounds of appeal.
It is evident that the Defendant (Counterclaim Plaintiff) died on December 28, 1993, which was after the closing of argument in the original court, according to the documentary evidence bound in the records ex officio.
In a case where a divorce lawsuit and a claim for division of property are combined, a judicial divorce claim is a right under the entirety of the husband and wife, so the heir may not take over the divorce lawsuit when one spouse dies during the divorce lawsuit, and in such a case, there is no special provision that the prosecutor may take over it, and the divorce lawsuit is terminated (see, e.g., Supreme Court Decision 85Meu27, Sept. 10, 1985; 92Meu143, May 27, 1993; etc.). Accordingly, the claim for division of property incidental to the divorce lawsuit under the premise that the divorce is established shall lose the benefit to maintain it at the same time as the divorce lawsuit is terminated.
Therefore, the judgment of the court below against the death of the Defendant (Counterclaim Plaintiff) is null and void as the judgment of the court below is reversed, and it is decided directly by the members to decide on this case’s principal lawsuit and counterclaim, and the costs of appeal after the completion of the lawsuit are to be borne by the Plaintiff (Counterclaim Defendant). It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Yong-hun (Presiding Justice)