Main Issues

Defects and Grounds for Retrial

Summary of Judgment

The purport of Paragraph 1 Item 3 of this Article is not only to the purport that a party who has a defect in power of representation can use this as a ground for a retrial, but also to the other party if he can receive benefits by asserting such a ground in the other party's part, it is reasonable to view that the other party can use it as a ground for a retrial.

[Reference Provisions]

Article 422(1)3 of the Civil Procedure Act

Plaintiff, retrial Defendant, and Appellee

Japanese Real Estate Construction Corporation

The Intervenor joining the Plaintiff

Interest Co., Ltd.

Defendant, Appellant, or Appellant

Republic of Korea (Attorney Hong-sung et al., Counsel for defendant-appellant)

Intervenor joining the Defendant-Appellant

Defendant Intervenor 1 and five others (Attorney Kim Il-sik et al., Counsel for the defendant-appellant)

Judgment of the lower court

Seoul High Court Decision 66Na14 decided October 20, 1966

Text

The judgment below is reversed;

Reasons

The grounds for retrial are one of the grounds for retrial when there is a defect in the authority of legal representation, the authority of attorney, or the authority of attorney necessary to conduct procedural acts, in light of Article 422(1)3 of the Civil Procedure Act. The purport of this Act is not only two, but also, if it is possible to receive benefits by asserting such grounds in the opposite side, it is reasonable to view that the opposite side would be able to take the grounds for retrial. However, the court below's dismissal of the grounds for retrial is justified on the grounds that there is a defect in the authority of attorney, the authority of attorney, or the authority of attorney, and the authority of attorney for procedural acts. The purport of this Act is that the party who has a defect in such authority of attorney is able to take it as the grounds for retrial. However, it is reasonable to interpret that the request for retrial cannot be made on the grounds that there is a defect in the authority of attorney in the opposite side as to this point. Thus, the court below's dismissal of the grounds for retrial is justified in the judgment of the first instance court.