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(영문) 대구고등법원 2018.03.30 2014나21763

손해배상(기)

Text

1. Revocation of the first instance judgment.

2. All plaintiffs' claims are dismissed.

3. The plaintiffs' total costs of litigation.

Reasons

1. Whether the lawsuit is lawful;

A. The following facts are significant in this Court:

① The legal representative of the Plaintiffs in the first instance court was ordered to submit a document authenticated by a notary public who can prove his/her power of attorney from the first instance court on the date of pleading of March 18, 2014 in the first instance court, but did not implement the order.

The first instance court rendered a judgment dismissing the instant lawsuit on the ground that the instant lawsuit was filed by a person without the power of attorney, and is unlawful.

② The Plaintiffs appointed a different legal representative from the first instance court’s legal representative in the party instance.

At the date of the second pleading of the trial, the plaintiffs' legal representative asserted that there was a legitimate power of attorney of the first instance court, and stated that the first instance court's legal representative ratified all the procedural acts conducted in the first instance court without the power of attorney of the first instance court.

B. According to Article 60 of the Civil Procedure Act applied mutatis mutandis to an attorney pursuant to Article 97 of the same Act, a litigation act conducted by a person who is defective in the power of attorney shall have its effect retroactively to the time of the act when the act is ratified by the party himself or the corrected attorney (see, e.g., Supreme Court Decision 2004Da66469, Apr. 15, 2005).

Therefore, the judgment of the court of first instance, which dismissed the instant lawsuit on the ground that it was instituted by a person who has no power of attorney, was unlawful, was no longer maintained.

This case may be rendered a judgment on the merits.