[소유권이전등기절차이행등][공1999.3.15.(78),470]
[1] In a case where a party asserts a defect in the power of attorney as a ground for quasi-examination, the person who bears the burden of proof (=the quasi-examination plaintiff)
[2] In a case where the quasi-Review Plaintiff asserted the existence of a separate indirect fact that he/she was delegated with the litigation from the quasi-Review Plaintiff while he/she was an attorney in the case where the quasi-Review Plaintiff did not directly delegate the litigation to the attorney in the case where he/she filed a lawsuit, the case holding that the quasi-Review Plaintiff had the burden of proving the defect of the power of attorney
[1] In a quasi-adjudication suit, where the party asserts the defect of the power of attorney as a ground for quasi-adjudication, the burden of proof is the quasi-adjudication plaintiff claiming the defect. The fact that the defect of the power of attorney is a passive fact is a passive fact, and it is difficult to prove it as a direct evidence, and it is common to confirm the existence of the principal fact through the prosecution process based on the empirical rule after proving the indirect fact.
[2] In a case where the quasi-Review Plaintiff asserted the existence of a separate indirect fact that he/she was delegated with the litigation from the quasi-Review Plaintiff while he/she was an attorney of the case where the quasi-Review Plaintiff had not directly delegated the litigation to the attorney of the case where he/she had filed a lawsuit, but failed to prove it, the case holding that the quasi-Review Plaintiff had the burden of proving the defect of the power of attorney
[1] Articles 261, 422(1)3, and 431 of the Civil Procedure Act / [2] Articles 261, 422(1)3, and 431 of the Civil Procedure Act
[1] Supreme Court Decision 95Da22436 delivered on December 23, 1996 (Gong1997Sang, 468)
Korea
Respondent (Attorney Jeong-chul et al., Counsel for the defendant-appellant)
Seoul District Court Decision 97Na47148 delivered on July 3, 1998
The appeal shall be dismissed. The costs of appeal shall be assessed against the petitioner (quasi-Appellant).
We examine the grounds of appeal.
In a quasi-adjudication suit, if the party asserts the defect of the power of attorney as a ground for quasi-adjudication, it is identical to the theory of lawsuit that the burden of proof is the quasi-adjudication plaintiff claiming the defect. However, since the fact of the defect of power of attorney is passive fact, it is difficult to prove it by direct evidence, and it is common to confirm the existence of the principal fact through the prosecution process based on the empirical rule after proving the indirect fact (see Supreme Court Decision 95Da22436, Dec. 23, 1996).
According to the records, in the first instance court, the respondent (which shall be stated only as quasi-Appellant; hereinafter the same shall apply) was the person who did not directly delegate the case of this case to the non-party 1 attorney at the non-party 1 attorney at the non-party 1. On the other hand, upon delegation by the respondent, the applicant appointed the above non-party 1 attorney as the representative of the respondent and did not have any defect in the right to attorney at the case (No. 129 of the record). However, in light of this point, the applicant did not prove any separate indirect fact that he was delegated by the respondent to appoint a representative from the respondent. In light of this point, the court below recognized such indirect fact as stated in its reasoning by the macro-market evidence and recognized the fact that the above non-party 1 represented the respondent for the case of this case without being delegated by the non-party 2 as the title trustee by the non-party 2, and there is no error in the misapprehension of the rules of evidence or the misapprehension of the legal principles as to the facts or the grounds for appeal.
Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Jae-soo (Presiding Justice)