A. The filing of a lawsuit against the deceased is unlawful in light of the basic principles under the Civil Procedure Act requiring the rescue of the plaintiff and the defendant, and thus, the substantial litigation relationship cannot be achieved. Thus, even if the judgment of the court of first instance was rendered, the judgment is null and void. The defendant's heir, who is the deceased, is unlawful (see, e.g., Supreme Court Decisions 69Da929, Mar. 24, 1970; 69Da1741, Feb. 9, 1971; 2003Da3706, Sept. 26, 2003). This legal principle applies likewise to the case where the defendant died before a duplicate of the complaint is served after the filing of the lawsuit.

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) On January 19, 2012, the Plaintiff filed the instant lawsuit with the Defendant and Nonparty 1 as a co-defendant. While the first instance court served a duplicate of the complaint on Nonparty 1’s domicile indicated in the complaint, the Plaintiff was not served on February 3, 2012 on the ground that his/her domicile was unknown.

(2) Accordingly, on February 24, 2012, the Plaintiff revised the address of Nonparty 1, and the first instance court served a duplicate of the complaint to the address corrected, but was not served on the ground of the lack of closed text.

(3) After that, the first instance court rendered a judgment in favor of the Plaintiff on August 10, 2012 at the end of the pleadings by serving a duplicate of the instant complaint against Nonparty 1, notice of the date of pleading, etc. by public notice, and rendered a judgment in favor of the Plaintiff. The original judgment of the first instance court was also served on Nonparty 1 by public notice.

(4) Meanwhile, Nonparty 1 died on February 9, 2012, and the Defendant, the spouse, gave up his/her inheritance, became co-inheritors 1, 2, and 3, the deceased Nonparty 1’s application for taking over the lawsuit, who is the deceased Nonparty 1’s children, became co-inheritors.

(5) On October 31, 2012, 1, 2, and 3 of the deceased Nonparty 1 filed an appeal subsequent to the first instance judgment. On January 15, 2013, the deceased Nonparty 1 filed an application to resume a lawsuit with the lower court.

(6) On August 29, 2013, the Plaintiff filed an application with the lower court for the correction of a party’s indication that the Defendant’s indication was corrected from Nonparty 1 to Nonparty 1 to Nonparty 1, 2, and 3, and filed an application for the correction of the deceased Nonparty 1’s request for the resumption of the lawsuit against the deceased Nonparty 1, 2, and 3.

C. Examining the above facts in light of the legal principles as seen earlier, the first instance judgment which declared the deceased non-party 1 who died before the delivery of a copy of the complaint after the lawsuit in this case is null and void. The appeal or the request for correction of the indication of the party to the lawsuit filed by the deceased non-party 1, the deceased non-party 1’s successor, is unlawful, and the request for correction of the indication of the party to the lawsuit is not allowed. Thus, the lower court should have dismissed the appeal by the deceased non-party 1’s successor to the lawsuit. However, the lower court should have determined that the appeal was dismissed by the deceased non-party 1, the part against the deceased non-party 1 among the first instance judgment was revoked, and the judgment dismissing the plaintiff’s claim corresponding to the revoked part. Thus, this part of the lower court’s judgment cannot be exempt from its reversal

2. Judgment on the Defendant’s grounds of appeal

On the grounds indicated in its reasoning, the lower court determined that the Defendant’s appeal filed on March 6, 2013, which was clearly past two weeks since November 27, 2012, was unlawful on the grounds that the Defendant knew of the fact that the judgment of the first instance was rendered at the latest on November 27, 2012, and that there were special circumstances that could naturally be recognizable as to the background of the instant judgment by social norms. As such, the lower court determined that the Defendant’s appeal filed on November 27, 2012, which was unlawful because it did not meet the requirements for subsequent supplement.

Examining the reasoning of the lower judgment in light of the legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on subsequent completion of procedural acts, contrary to what is alleged in the grounds of appeal.

3. Conclusion

Therefore, the part of the judgment of the court below against the deceased non-party 1's applicant for taking over the lawsuit is reversed. Since this part is sufficient for the court to render a direct judgment, this part is dismissed pursuant to Article 437 of the Civil Procedure Act. The appeal by the deceased non-party 1 is dismissed. The defendant's appeal is dismissed. The costs of the lawsuit after the appeal between the plaintiff and the deceased non-party 1's applicant for taking over the lawsuit and the costs of appeal between the plaintiff and the defendant are assessed against each losing party. It is so decided as per

Justices Kim So-young (Presiding Justice)