[활석등채취금지][집27(3)민,205;공1980.2.1.(625),12413]
(a) A summary of the notification of extinction of the representative authority of a corporation to the other party;
(b) Whether a change in the representative of a corporation occurs in cases where there exists an attorney-at-law;
(c) Whether the withdrawal of a lawsuit by deception can be revoked;
1. With respect to the extinguishment of the representative’s power of representation of a juristic person, no effect shall accrue unless the new representative or an attorney has notified the other party thereof under Articles 60 and 59 of the Civil Procedure Act; and
2. Where there exists an attorney even if the representative of a juristic person is replaced, the new representative shall not directly conduct the procedural acts, or the interruption of lawsuit shall not occur, regardless of whether the new representative conducts the procedural acts; and
3. The procedural acts to withdraw a lawsuit shall not be revoked, even if such withdrawal is made by deception of another person.
Articles 60, 59, 216, and 239 of the Civil Procedure Act
Supreme Court Decision 68Da1629 Decided December 17, 1968, Supreme Court Decision 64Da92 Decided September 15, 1964, Supreme Court Decision 69Da8 Decided November 24, 1970
Daeil Mining Co., Ltd., Counsel for the defendant-appellant
(Withdrawal) Nonparty 1
Defendant 1 et al., Counsel for the defendant-appellant
Seoul High Court Decision 74Na1244 delivered on June 9, 1976
This case was terminated by the plaintiff's succeeding intervenor's 197.8.17 and the withdrawal of the lawsuit.
The litigation costs incurred after the plaintiff's successor's motion to designate a date on August 30, 1977 shall be borne by the plaintiff's successor.
According to the plaintiff's successor's application for designating the date of withdrawal of the lawsuit by the plaintiff (hereinafter the intervenor's title) and the non-party 2, the representative director of the plaintiff company, the non-party 1, and the non-party 2, the plaintiff's representative director of the plaintiff company, withdraw the lawsuit of this case. According to the records, the copy of the above lawsuit was served on the defendant's attorney 8.20 of the same year, but the defendant did not raise any objection to the above withdrawal within 2 weeks thereafter. Thus, the above non-party 2, the representative director of the plaintiff company, who was the plaintiff's successor, was dismissed from the office of the director at the temporary general meeting of shareholders of the plaintiff company, the above non-party 2, who was the representative director of the plaintiff company, was dismissed from the office of the representative director of the plaintiff company at the time of the submission of the above lawsuit, and thus, it is not effective.
According to Gap evidence No. 1 of the lawsuit which is presumed to have been established as a public document, the above non-party 2 was dismissed as of August 16 of the same year, which was the date before the withdrawal of the lawsuit was submitted, and the registration of modification was made to that effect by the non-party 3 and non-party 4 as a joint representative director. However, with respect to the extinguishment of the representative of the corporation, the new representative or the legal representative is not effective unless the new representative or the legal representative notifies the other party in accordance with Articles 60 and 59 of the Civil Procedure Act (see Supreme Court Decision 63Da1629, Dec. 17, 1968). Thus, it cannot be found in the record that the intervenor notified the other party of the extinguishment of the representative authority of the non-party 2 before the withdrawal of the lawsuit in this case.
In this case, the intervenor was the representative director of the intervenor company at the time when he again delegated the lawsuit of this case to the attorney at the court of final appeal. The intervenor resigned on March 12, 197 and the non-party 6 was appointed as the representative director on the same day, and the non-party 2 was appointed as the representative director on the same day and was dismissed on August 16 of the same year. However, the meaning of Article 216 of the Civil Procedure Act does not apply only to the case where the litigation is conducted by the attorney, unless the litigation is conducted by the attorney. Thus, if the new representative was replaced and the litigation is conducted directly by the representative, the litigation procedure is suspended as a result of the application of Article 213 above, and the new representative is not effective. Thus, the new representative's assertion that the litigation procedure of this case is null and void or it does not apply only to the case where the new representative is not directly nullified by the plaintiff 2, and it does not directly affect the litigation of this case.
The intervenor asserts again against the above non-party 2, who is currently pending in the Seoul High Court and the non-party 7 and 4 and the non-party 1, immediately withdraw the case of the main case of the claim for the prohibition of the extraction of tin and the case of the application related thereto, and if the case is attached to the letter of withdrawal, it is kept at the time after the above High Court withdraws the case and return it at that time. The defendant did not withdraw the above High Court's case and received the letter of withdrawal which is unilaterally kept against the intervenor's will. The defendant submitted the letter of withdrawal to the Supreme Court without the above High Court's ruling that he would immediately withdraw the above case and submitted the letter of withdrawal to the above non-party 2 as above. The defendant's act was fraudulent, so the above defendant's declaration of withdrawal is a criminal act corresponding to the grounds for retrial as stipulated in Article 422 (1) 5 of the Civil Procedure Act, and it cannot be concluded that the plaintiff's withdrawal of the case can not be accepted by the defendant's assertion that the plaintiff's withdrawal is the plaintiff's withdrawal.
If a litigation to withdraw a lawsuit was conducted by a legitimate party, it cannot be revoked even if the withdrawal was made by deception of another party. Thus, it cannot be revoked even if the withdrawal was made by deception of a party (see Supreme Court Decision 64Da92 delivered on September 15, 1964, Supreme Court Decision 69Da8 delivered on November 24, 1970). Thus, the defendant's deception cannot be revoked or withdrawn even if the above non-party 2, the representative director of the intervenor company, submitted the written withdrawal of the lawsuit by deception of the defendant, and there is no evidence to find that the defendant's act of causing the above non-party 2 to withdraw the lawsuit constitutes a crime of fraud subject to criminal punishment. Thus, the above argument is legitimate. Accordingly, the date of the intervenor's application for the revocation is without merit. It is so decided as per Disposition by the assent of all participating Justices who reviewed the lawsuit after August 30, 197.
Justices Sap-ho (Presiding Justice) Man-ho (Presiding Justice)