[소유권말소등기][미간행]
[1] Whether a new representative may take over a legal procedure even if the representative of a clan has lost his/her power of representation in a lawsuit to which the clan is a party, but the legal procedure has not been interrupted due to his/her attorney (affirmative)
[2] Whether the court has a duty to deliberate and investigate a case where there are circumstances suspected of doubt by already submitted materials about the existence of legitimate representation of the clan representative, which is a matter of ex officio investigation (affirmative)
[1] Articles 52, 58, 64, 235, and 238 of the Civil Procedure Act / [2] Articles 52, 58, 64, and 134 of the Civil Procedure Act
[1] Supreme Court Decision 72Da1271, 1272 decided Oct. 31, 1972 (No. 20-3, 80) / [2] Supreme Court Decision 91Da21039 decided Oct. 11, 1991 (Gong1991, 2708), Supreme Court Decision 92Da48789, 48796 decided Mar. 12, 1993 (Gong193, 1169), Supreme Court Decision 95Da5288 decided May 23, 195 (Gong195Ha, 2237)
5. The term "public interest" means a public interest or an interest or an interest or an interest or an interest or an interest or an interest or an interest or an interest or
Defendant (Law Firm New, Attorney Park Jong-young, Counsel for the defendant-appellant)
Seoul High Court Decision 2006Na114159 decided September 14, 2007
The instant lawsuit was concluded as the withdrawal of the suit on November 1, 2007.
The provisions concerning legal representation and legal representative in the Civil Procedure Act shall apply mutatis mutandis to the representative of a clan; the fact that there is a representative authority shall be proved in writing; the litigation procedures shall be interrupted when the representative of a clan has lost his/her representative authority; in this case, the person who has become the representative of a clan shall take over the litigation procedures; but if there is an attorney, the litigation procedures shall not be interrupted (see, e.g., Articles 64, 58, 235, 238, etc. of the Civil Procedure Act). In cases where there is an attorney and litigation procedures are not interrupted, a new representative may take over the litigation procedures (see Supreme Court Decision 72Da1271, Oct. 31, 1972; Supreme Court Decision 72Da1271, Oct. 31, 1972; Supreme Court Decision 95Da15489, Apr. 16, 198; Supreme Court Decision 97Da1989, Apr. 19, 1997).
According to the records, after the defendant filed a final appeal against the judgment below on October 4, 2007, the non-party 1, who was newly appointed as the Do governor of the plaintiff clan on November 1, 2007, prepared and submitted a written withdrawal of the lawsuit as the representative of the plaintiff clan, along with the minutes of the general meeting of 2007 general meeting, the names of the members, the power of attorney, the pass report, and the certificate thereof, and the defendant submitted a written withdrawal as the representative of the plaintiff clan on November 16, 2007 (the non-party 1 submitted a written withdrawal of the "Attorney Kim Jong-won" to a party member on November 2, 2007, but the attorney of the plaintiff clan submitted the written withdrawal of the plaintiff's withdrawal to the plaintiff clan on November 2, 2007, since he was "law firm Hann," the plaintiff's attorney of the plaintiff clan is
The attorney of the plaintiff clan submitted an application to continue the trial on November 23, 2007 to the party members, and the resolution that appointed the non-party 1 as the non-party 2 as the representative of the plaintiff clan is null and void, and the non-party 1 still claims that the non-party 1 has no effect of taking the lawsuit against the plaintiff clan as the representative of the plaintiff clan. Accordingly, according to the data submitted by the non-party 1 in this case and other records, his appointment from the general meeting of the plaintiff clan in 2007 to the non-party 1 was recognized as having the power of representation. The data submitted by the plaintiff clan alone cannot deny the legality of the non-party 1'
Therefore, the lawsuit of this case is concluded by the withdrawal of the lawsuit and the consent of the other party that the non-party 1 as the representative of the plaintiff clan. Therefore, it is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Young-ran (Presiding Justice)