In the event that the plaintiff brought a lawsuit with the deceased person who is aware of the death of the defendant, and after becoming aware of the details of the claim, the cause of the lawsuit, and the plaintiff's application for correction of the defendant's indication after becoming aware of the plaintiff's actual purpose or death to resolve the dispute through the lawsuit, the actual defendant can correct the defendant's indication as the heir of the deceased person, if it is not a deceased person who is not a party to the lawsuit but a deceased person who is the heir of the deceased and it is not just a mistake in the indication (see Supreme Court Order 2005Ma425, July 4, 2006). In light of the characteristics of the inheritance system, such as succession of the inheritance obligation through renunciation of inheritance after the commencement of inheritance, and difficulty in the confirmation of the inheritance obligor, even if the creditor brought a lawsuit against the first-order heir without knowing the debtor's renunciation of inheritance after the death of the debtor, the above legal principle is equally applicable to the case where the obligee satisfies the above premise of the actual identity of the defendant.

According to the reasoning of the judgment below, the court below, based on the adopted evidence, died as of April 7, 2003 by Nonparty 1, who borrowed KRW 30 million from the plaintiff around October 27, 1997, and as of October 6, 2003, the report on the renunciation of inheritance by Nonparty 2 and Nonparty 3, the heir of the above deceased, was accepted as of October 6, 2003. Thus, the Defendants, the first instance court co-defendant 4, who were the deceased, and the first instance court co-defendant 4, were succeeded to the above loan obligation as the heir of the above second instance court. The plaintiff, around October 25, 2007, maintained the lawsuit of this case with Nonparty 2 and Nonparty 3, the heir of the above first instance court, as the defendant, and dismissed the plaintiff's claim for rectification after the lapse of prescription period of the above 10 years after the establishment of the loan claim of this case as of June 19, 2008.

However, according to the records, the plaintiff first filed the lawsuit in this case against the above deceased's first deceased's heir without being aware of his renunciation of inheritance, but became aware of it during the lawsuit in the first instance trial, and applied for the court by changing the defendant to the defendants and the non-party 4, who are legitimate successors of the above deceased. In full view of all the circumstances such as the contents of the claim in this case, the plaintiff's purpose of the lawsuit in this case, the process of filing the lawsuit in this case, and the time of filing the above application for correction, the actual defendant of the lawsuit in this case's intent shall be the defendants not the first-class heir but the second-class heir, who is a legitimate heir, who is the inheritance debtor, due to the retroactive effect of the renunciation of inheritance. However, it is nothing more than the error in the indication, and therefore, it is subject to the correction of the defendant's indication. As long as the plaintiff had the character of the correction of the indication that confirmed the true party before and after the alteration, it shall not be deemed that the change of the defendant's indication in this lawsuit would lose the legal nature and effect.

Therefore, although the debt of this case inherited by the Defendants as the genuine party to the lawsuit of this case should be deemed to have been interrupted due to the filing of the lawsuit of this case before the expiration of the statute of limitations, the court below rejected the Defendant’s claim without examining the substance of the application for correction of Defendant at the court of first instance, and dismissed the Plaintiff’s claim, which erred by misapprehending the legal principles on the correction of indication of the party, which affected the conclusion of the judgment.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Yang Chang-soo (Presiding Justice)