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(영문) 대법원 2016. 4. 29. 선고 2014다210449 판결

[손해배상(기)][공2016상,688]

Main Issues

[1] In a case where a party to a lawsuit delegated a litigation to his/her attorney and then died before the lawsuit was filed by indicating the deceased party as the plaintiff, whether the lawsuit is lawful (affirmative), and whether the inheritor should take over the litigation procedure (affirmative)

[2] In a case where a party died but the litigation procedure has not been interrupted due to the party’s death, whether the judgment has an effect on all the successors (affirmative) / In such a case, whether an appeal shall be filed after the procedure for taking the lawsuit is followed (affirmative in principle), and whether the appellate court is exempted from taking the lawsuit in a case where the legal representative of the first instance court has special power to take the lawsuit (affirmative)

[3] In a case where an attorney who was delegated an appellate trial lawsuit to the inheritor submitted a petition of appeal, etc. in the name of the deceased party without taking the procedure for taking over the lawsuit, whether the defect is cured if the inheritor files an application for taking over the lawsuit at the appellate court and ratification of the litigation by the attorney is made (affirmative), and whether ratification is implicitly possible (affirmative)

Summary of Judgment

[1] Even if a party dies, the attorney’s power of attorney is not extinguished (Article 95 subparag. 1 of the Civil Procedure Act). If the party died before the party’s lawsuit was delegated to the attorney, and the party was aware that the party died and then the party was the Plaintiff, the institution of the lawsuit is legitimate, and the effect of the lawsuit, such as interruption of prescription, is reverted to the inheritor. In this case, the inheritor of the deceased who died by analogy of Article 233(1) of the Civil Procedure Act shall take over the litigation procedure

[2] Where a party dies but there is an attorney, the litigation procedure shall not be interrupted (Articles 238 and 233(1) of the Civil Procedure Act), and the attorney shall perform the lawsuit for all the successors, and the judgment shall be effective against all the successors. In this case, in principle, when the original copy of the judgment is served on the attorney in accordance with the principle of representation at the court level, the litigation procedure shall be interrupted, and thus, the appeal shall be in principle instituted following the procedure for taking over the lawsuit. However, if the attorney in the first instance files an appeal due to the special right to take over the lawsuit, the litigation procedure shall be interrupted from the time of filing the appeal, and the procedure for taking over the lawsuit shall be

[3] An appeal filed during the interruption of a litigation procedure is unlawful, but the defects can be cured by applying for a takeover to the appellate court. Thus, even if an attorney entrusted with the appellate trial lawsuit by the inheritor submitted the petition of appeal and the statement of grounds of appeal in the name of the deceased party without taking a lawsuit acceptance procedure, if the inheritor files a request for a takeover in the appellate court and ratification is lawful, the defects can be cured, and ratification is impliedly possible.

[Reference Provisions]

[1] Articles 95 subparag. 1 and 233(1) of the Civil Procedure Act / [2] Articles 90(2)3, 95 subparag. 1, 233(1), and 238 of the Civil Procedure Act / [3] Article 233(1) of the Civil Procedure Act

Reference Cases

[2] Supreme Court Decision 94Da54160 delivered on September 26, 1995 (Gong1995Ha, 3519) / [3] Supreme Court Decision 80Da623 delivered on October 14, 1980 (Gong1980, 13318), Supreme Court Decision 94Da61649 delivered on February 9, 1996 (Gong196Sang, 888)

Plaintiff-Appellant

Attached List Nos. 1 through 4, 25 through 37 are as shown in the Attached List of Plaintiffs (Law Firm aiming at Law, Attorneys Nam-chul et al., Counsel for the plaintiff-appellant)

Plaintiff-Appellee

Attached List Nos. 5 through 24, 38 through 52, 56 through 185 are as shown in the Attached List of Plaintiffs (Law Firm aiming at Law, Attorneys Nam-chul et al., Counsel for the plaintiff-appellant)

Plaintiff

Attached List Nos. 53 is as shown in [Attachment List] (Law Firm Purpose, Attorneys Nam-chul et al., Counsel for the plaintiff-appellant)

Plaintiff-Appellant-Appellee

Attached List Nos. 54 and 55 are as shown in [Attachment List] (Law Firm aiming at Law, Attorneys Nam-chul et al., Counsel for the plaintiff-appellant)

Defendant-Appellee-Appellant

Korea

Judgment of the lower court

Seoul High Court Decision 2013Na2012264 decided April 17, 2014

Text

1. The part of the judgment of the court below against Plaintiff 115 is reversed, and the judgment of the court of first instance is revoked. This part of the lawsuit is dismissed.

2. The part of the judgment of the court below against the defendant against (1) 53, (2) 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, and 37, part against the defendant against the defendant against the plaintiff 138, (3) 78, 79, 80, 81, 82, 83, 84, 85, and 86, the part against the non-party 1's consolation money and the part against the defendant against the non-party 2's share of consolation money are reversed, and that part of the case is remanded to the Seoul High Court.

3. (1) The Defendant’s appeal by Plaintiffs 1, 2, 3, and 4, and (2) the Defendant’s appeal by Plaintiffs 53, 1, 2, 3, 4, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 78, 79, 80, 81, 82, 83, 84, 85, 86, 115, and 138, and all remaining appeals by Plaintiffs 78, 79, 80, 81, 82, 83, 84, 85, 86, 115, and 138, and (3) the Defendant’s remaining appeals by Plaintiffs 8, 85, 84, and 868.

4. Plaintiff 117, Plaintiff 79’s request for taking over the lawsuit, Plaintiff 116’s request for taking over the lawsuit, Plaintiff 106’s request for taking over the lawsuit, Plaintiff 2, Plaintiff 3, Plaintiff 4, Plaintiff 24’s request for taking over the lawsuit, Plaintiff 5, request for taking over the lawsuit, Plaintiff 6, request for taking over the lawsuit, Plaintiff 7, request for taking over the lawsuit, Plaintiff 8, and Plaintiff 105 are all dismissed.

5. Of the costs of appeal, the part incurred between Plaintiffs 1, 2, 3, and 4 and the Defendant is borne by the above Plaintiffs. (2) Plaintiffs 53, 1, 2, 3, 4, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 78, 79, 80, 81, 82, 83, 84, 85, 86, 115, 138, 26, 27, 28, 29, 30, 32, 34, 35, 36, 34, 36, 36, 17, 17, 138, 16, 36, 36, 1 of the lawsuit, 36, 5, and 1 of the defendant.

Reasons

1. The decision of the plaintiff 115 is made ex officio.

According to the records, Plaintiff 115 may know the death of November 9, 2002. Thus, the lawsuit filed by Plaintiff 115 after the death is unlawful, and a request for correction of a party indication or a request for continuation of lawsuit by his heir is not permissible. Therefore, the part of the judgment of the first instance court and the lower court on the lawsuit filed by Plaintiff 115 is erroneous.

2. We examine the grounds of appeal by Plaintiffs 54 and 55, which are the request for succession of the deceased Plaintiff 53, to the extent of supplement in case of the grounds of appeal (each of the documents submitted after the deadline for submitting the grounds of appeal is examined; hereinafter the same shall apply).

A. Even if the party dies, the attorney’s power of attorney is not extinguished (Article 95 subparag. 1 of the Civil Procedure Act). If the party died before the party’s lawsuit was delegated to the attorney, and the party was aware that he/she died, and then the party was designated as the Plaintiff, such institution of lawsuit is legitimate and the effect of the lawsuit, such as interruption of prescription, is reverted to the inheritor. In such cases, the inheritor of the deceased who died by analogy of Article 233(1) of the Civil Procedure Act shall take over the litigation procedure.

On the other hand, where a party dies and there is an attorney, the litigation procedure shall not be interrupted (Articles 238 and 233(1) of the Civil Procedure Act), and the attorney shall perform the lawsuit for all inheritors, and the judgment shall be effective against all inheritors (see, e.g., Supreme Court Decision 94Da54160, Sept. 26, 1995). In this case, when the original copy of the judgment is served on the attorney under the principle of representation of the court, the litigation procedure shall be interrupted, and the appeal shall be instituted following the procedure for taking over the lawsuit. However, if the attorney of the court of first instance files an appeal due to a special right to take over the appeal, the litigation procedure shall be interrupted from the time of filing the appeal, and thus, the procedure shall be interrupted at the appellate court.

In addition, an appeal filed during the interruption of a litigation procedure is unlawful, but it is possible to request the appellate court to take over the lawsuit and recover the defect (Supreme Court Decision 80Da623 Decided October 14, 1980). Thus, in a case where the attorney entrusted by the appellate court with the lawsuit from the inheritor submitted the petition of appeal and the statement of grounds of appeal in the name of the deceased party who did not take the procedure for taking over the lawsuit and died, if the inheritor files the petition of appeal and the statement of grounds of appeal in the appellate court are lawful, the defect shall be cured if it is confirmed that

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

1) As the deceased non-party 3’s wife, Plaintiff 53 died on June 11, 2012, and Plaintiff 54 and Plaintiff 55, who was the deceased’s heir.

2) On June 21, 2012, a limited liability law firm (hereinafter “limited to”) submitted a complaint stating Plaintiff 53 as one of the plaintiffs to the first instance court. The duplicate of the complaint was served on the defendant around that time.

3) The name of Plaintiff 53 is written in the list of the clients of the delegation letter submitted at the time of the filing of the said lawsuit, and in the mandatary column, “law firm (with limited liability)” is written, and subsequent to the Plaintiff 53’s name, the stamp image is affixed by the neck book. The date of the preparation of the delegation letter is “ June 2012.”

4) On June 7, 2012, Plaintiff 54 obtained an abstract of Plaintiff 53’s resident registration cards from himself/herself and Plaintiff 53, and delivered them to his/her ordinary meeting. The abstract of each of the above resident registration cards was submitted as evidence by the first instance court.

5) On May 30, 2013, the first instance court rendered a judgment in favor of the Plaintiff 53 on a partial winning judgment ordering the Defendant to pay KRW 20,000,000 to Plaintiff 53, KRW 90,000,00 to Plaintiff 54, and KRW 10,000,000 to Plaintiff 55, and damages for delay.

6) On June 17, 2013, upon receiving a delegation of an appellate lawsuit from Plaintiffs 54, 55 with respect to the part against which Plaintiffs 53, 54, and 55 lost, the law firm’s orientation (hereinafter referred to as “branch”) appealed against the part against which the judgment of the court of first instance was lost in the name of Plaintiffs 53, 54, and 55, and the Defendant also appealed against the Defendant against the Plaintiff 53.

7) On September 30, 2013, when the court below was in progress, Plaintiff 53 died on June 11, 2012, and accordingly, Plaintiff 54 and Plaintiff 55 filed an application for the takeover of legal proceedings. As such, Plaintiff 54 and Plaintiff 55 filed an application for the takeover of legal proceedings.

8) The lower court revoked the first instance judgment ex officio and dismissed the Plaintiff 53’s lawsuit on the ground that Plaintiff 53’s lawsuit was unlawful, since Plaintiff 53 died before the complaint was received in the first instance court.

9) As to this, Plaintiffs 54 and 55 are the primary parties, and as the primary parties, they appeal as the applicant for a motion to resume a lawsuit, and they dispute that they lawfully succeeded to Plaintiff 53.

C. Examining these facts in light of the legal principles as seen earlier, as of June 2012, both the time when Plaintiff 53 died and the time when the litigation was delegated to Plaintiff 53, Plaintiff 53, along with Plaintiff 54 and Plaintiff 55, died, and it is reasonable to deem that Plaintiff 53 had filed the instant lawsuit by indicating Plaintiff 53 as one of the plaintiffs while gathering such facts. In such a case, the filing of the lawsuit on behalf of Plaintiff 53 is lawful by delegation of the lawsuit by Plaintiff 53, and the first instance judgment, which was rendered for all of the successors of Plaintiff 53, without suspending the first instance trial proceedings, is effective as against all of the successors. Moreover, even if Plaintiff 54 and 55, who was the inheritor of Plaintiff 53, appointed Plaintiff 53 as the litigation representative after the pronouncement of the first instance judgment, and subsequently Plaintiff 53, who was the plaintiff 53, was disqualified in the name of Plaintiff 53, thereby confirming Plaintiff 53’s request for continuation of the lawsuit.

Therefore, the lower court should have deliberated and determined whether Plaintiff 53 has delegated the instant lawsuit to the ordinary reputation before the death of Plaintiff 53 by investigating the date of preparation and preparation of the delegation letter, the date of issuance of necessary documents, the issuer of the lawsuit, and the payment of fees to the attorney. Accordingly, if it is recognized that Plaintiff 53 delegated the instant lawsuit to the ordinary reputation before death, the lower court should have accepted Plaintiff 54, and Plaintiff 55’s application for the resumption of the lawsuit, and determined that Plaintiff 54 and Plaintiff 53’s consolation money was paid to Plaintiff 53 inherited by Plaintiff 55.

Nevertheless, without examining these points, the lower court erred by misapprehending the legal doctrine on the taking-over of a lawsuit due to the death of the party, and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

3. We examine the grounds of appeal by Plaintiffs 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, and 37.

The court below rejected all of the above plaintiffs' claims on the premise that the deceased non-party 4 was a victim of the Jinju area reported by the deceased non-party 4 on the ground that the evidence submitted by the above plaintiffs alone is insufficient to recognize that the deceased non-party 4 was the victim of the Jinju area reported by the deceased non-party 4.

According to the reasoning of the judgment below and the records, the deceased non-party 5's expulsion of the deceased non-party 4, the child of the deceased non-party 4, is written on December 17, 1949, and the reason for the inheritance of the family head is "the death of the former family head". The deceased non-party 6's death of the deceased non-party 4, the deceased non-party 4's spouse of the deceased non-party 1, is also made on December 17, 1949. Thus, the deceased non-party 4 was already deceased before the outbreak of the Korean War or the deceased local news reporting franchise case.

However, according to the records, it can be known that the deceased non-party 4’s book of removal was destroyed at the time of the Korean War, and if the deceased non-party 4’s book of removal was destroyed, it cannot be ruled out that the deceased non-party 5’s book of removal was also destroyed, and that the deceased non-party 5’s book of removal was also destroyed. It is difficult to view that the deceased non-party 4’s book of removal from the deceased non-party 5’s book of removal from the deceased non-party 5’s book of removal from the deceased non-party 5’s book of removal from the deceased non-party 5’s book of removal from the deceased non-party 5’s book of removal from the deceased non-party 5’s book of removal from the deceased non-party 5’s book of removal from the deceased non-party 4’s book of removal from the deceased non-party 5’s book of removal from the deceased non-party 5’s book of removal from the deceased party’s book of removal from the deceased.

또한 과거사정리위원회는 신청인 조사, 참고인 조사, 각종 자료 조사, 현장 조사 결과를 종합하여 77명을 진주지역 보도연맹사건의 희생자로 확인하는 이 사건 진실규명결정을 하였고, 망 소외 4의 경우 소외 5에 대한 신청인 조사 외에도 마을 주민인 소외 7, 소외 8에 대한 참고인 조사 결과 등을 토대로 그를 희생자로 결정하였는데, 참고인 소외 8은 ‘소외 4는 같은 무동마을 주민이고, 소외 9는 같은 청담리이긴 하나 이웃 평촌마을 주민이다’, ‘소외 4는 좌익운동 한다 이런 말만 있었다’, ‘소외 4와 소외 9는 좌익으로 6·25 전후로 지서에 자수를 한 뒤 보도연맹에 가입하였다’, ‘소외 4는 지서에서 오라하니까 지서로 갔고 소외 9도 마찬가지였을 것이다’, ‘지수지서에서 소집한 이후 밤에 차에 싣고 데리고 나갔다고 한다’, ‘풍문에 진성면 태기댁 골짜기에서 총살시켰다고 하는데 당시는 전시였기 때문에 시신을 찾으러 갈 수도 없는 상황이었다’, ‘좌익을 심하게 해도 지서에 친한 사람이 있으면 소집에 빠졌다. 승산리(승내리) 허 씨가 그런 케이스이고, 오히려 좌익도 옳게 하지도 못한 사람들만 잡혀가 죽었는데, 소외 4, 소외 9 등은 그런 경우이다’라고 진술하는 등 당시 상황을 비교적 상세하게 진술하고 있다.

According to the above facts, despite Nonparty 5’s written transcript, it is highly probable that the deceased Nonparty 4 is a victim of the news reporting case in the region of Jinju, such as the decision of the Committee for the Settlement of History. Therefore, the lower court should fully examine whether Nonparty 5’s written book of removed matters was restored due to the Korean War, etc., whether there were other materials that could specify the time of death of the deceased Nonparty 4, and whether there were other materials that could specify the time of death of the deceased Nonparty 4, such as the result of the investigation by the witness with Nonparty 8.

Nevertheless, the lower court, without properly deliberating on these issues, concluded that the deceased non-party 4 was not a victim of the news reporting case in the Jinju area, solely based on the reasons indicated in its reasoning. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by failing to exhaust all necessary

4. We examine the grounds of appeal by Plaintiffs 1, 2, 3, and 4.

In light of the circumstances of the judgment below, the court below rejected all of the above plaintiffs' claims on the premise that the deceased non-party 10 was the victim of the Jinju Regional Franchises, on the ground that the evidence submitted by the above plaintiffs alone is insufficient to recognize the deceased non-party 10 as the victim of the Jinju Regional Franchises.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules or by failing to exercise

5. We examine the Defendant’s grounds of appeal.

A. As to whether the victims of this case other than the deceased non-party 10, non-party 4, and non-party 11 were victims

For reasons indicated in its holding, the lower court determined that the victims of this case, other than the deceased Nonparty 10 and Nonparty 4, were sacrificed due to the news report of the Jinju area. Examining the relevant legal principles and records, if the part concerning the deceased Nonparty 4 and the part concerning the deceased Nonparty 11, the lower court’s aforementioned determination is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the principle of evidence judgment, the burden of proof, and the

B. As to whether the deceased non-party 11 was the victim and the deceased non-party 12's share of consolation money

1) Based on its stated reasoning, the lower court determined that Plaintiff 138 succeeded respectively to the deceased non-party 11’s own consolation money of KRW 80 million and KRW 40 million, which was unique to Non-party 12, on March 3, 2001, after recognizing the death of the deceased non-party 12 as his wife at the time of the deceased non-party 11’s death.

2) However, it is presumed that the entries in the register of removed entries or the family relations register are legally recorded and the entries therein are consistent with the truth (see Supreme Court Decision 86Meu119, Feb. 24, 1987, etc.). Therefore, the above decision of the court below is difficult to accept.

The record reveals the following facts. In other words, the plaintiff 138, the president of the deceased non-party 11, was dead on January 30, 1967, and the deceased non-party 11 was removed on February 25, 1968 from the deceased non-party 11. The plaintiff 138, the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, and the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, the deceased non-party 2, the deceased party 1, the deceased non-party 1, the deceased 1.

According to the above facts, it is presumed that Nonparty 14 was born on October 4, 1953 as the natural father of Nonparty 11 and Nonparty 12 based on the statement of removed register. Thus, unless there is any other assertion or evidence to reverse such presumption, Nonparty 11 shall be deemed to have been alive for at least 1952 years, unless there is any other assertion or evidence to reverse that presumption, and it is insufficient to reverse the presumption of removed register on the ground that Plaintiff 138 made a statement that Nonparty 11 died of the deceased non-party 1 as the reported case of Jinju area. Therefore, the court below should have deliberated whether Nonparty 14 is the deceased non-party 11 and the deceased non-party 12, the birth date of Nonparty 14, the deceased non-party 111, and the deceased non-party 14, who was removed from the report of death, thereby investigating the circumstances surrounding the report of birth with respect to the non-party 14.

Furthermore, even if it is proved that the deceased non-party 11 died due to the fact that he was born after three years thereafter, and that he was not the deceased non-party 11's natural father, the non-party 14 still remains insufficient to have the burden of presumption on the fact that he was the deceased non-party 12's natural father, so unless there is no other assertion or proof to reverse the presumption power, the non-party 14 and the deceased non-party 12 together with the plaintiff 138 shall be succeeded to the deceased non-party 12. Therefore, even if the deceased non-party 11 is recognized as the victim, the shares of inheritance of plaintiff 138 for the deceased non-party 12's own consolation money should be calculated again.

Nevertheless, without properly deliberating on these issues, the lower court concluded that Nonparty 14 was not the deceased Nonparty 11 and the deceased Nonparty 12’s natural father, and concluded that the deceased Nonparty 11 was not the deceased Nonparty 14’s natural father. It was presumed that the deceased Nonparty 11 made a sacrifice due to the fact that Nonparty 14 was born on or around July 1950, 1950, which was three years before the birth of the deceased Nonparty 14, and received part of the claim for consolation money from Plaintiff 138, and in calculating the deceased Nonparty 12’s own inheritance portion of consolation money, the lower court deemed Plaintiff 138 as the deceased Nonparty 12’s independent heir. In so determining, the lower court erred by misapprehending the legal doctrine on the presumption of the record of removal and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The Defendant’s ground of appeal pointing this out is with merit

C. As to the statute of limitations defense

Based on the duly admitted evidence, the lower court determined that the Plaintiffs, as bereaved family members of the instant sacrifers (excluding the deceased Nonparty 10, the deceased Nonparty 4, and the deceased Nonparty 11) who received the truth-finding decision of October 6, 2009 under the Framework Act on the Settlement of History for the Truth and Reconciliation (hereinafter “The Act”), anticipated that the Defendant take appropriate legislative measures for restoring their honor and compensating the damages upon the recommendation of the Committee on the Settlement of History (excluding the deceased Nonparty 10, the deceased Nonparty 4, and the deceased Nonparty 11), and that the Defendant brought a lawsuit individually against the Defendant on June 22, 2012 when the Defendant did not take any affirmative action. According to such findings, considering that the above Plaintiffs’ legislative measures were waiting by the Defendant before the lapse of the short-term extinctive prescription period after the truth-finding decision, the lower court determined that the said Plaintiffs’ exercise their rights within a reasonable period of time is reasonable.

In light of the relevant legal principles and records, the judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles on abuse of rights

D. As to the deceased non-party 1 and non-party 2's share of consolation money as to the deceased non-party 15's bereaved family members

1) Based on its adopted evidence, the lower court acknowledged that: (a) the bereaved family was the victim’s bereaved family at the time of Nonparty 15’s death; (b) Nonparty 2; (c) Nonparty 16; and (d) Nonparty 78; (c) Nonparty 79; (d) Plaintiff 79; (e) Nonparty 80; and (e) Nonparty 1 died in around 1950 after the deceased Nonparty 15. Accordingly, the lower court determined that: (a) Nonparty 2 inherited the deceased’s mother on October 11, 2004; and (b) Nonparty 2’s natural consolation money of KRW 40 million and KRW 10 million inherited by Nonparty 2 from the deceased Nonparty 1; and (c) Nonparty 1’s inheritance of Plaintiff 78, Plaintiff 79; and Plaintiff 8; and (d) Nonparty 1’s inheritance of Plaintiff 1 and Nonparty 2, the deceased Nonparty 1’s heir on August 1, 198, and Nonparty 28.

2) However, according to the records, each of the multiple copies of the deceased non-party 15, the deceased non-party 16, and the plaintiff 84 (Evidence A 21) stated that the non-party 1 was born on December 19, 1948, and there is no indication as to the death, and it cannot be concluded that the non-party 1 died without permission, unless there is any assertion or proof to reverse the presumption of the above entries. Furthermore, even if the non-party 1 died even if it was considered that the death was the death of the deceased non-party 15. There is no direct evidence in the record as to the fact that the death of the non-party 1 was after the deceased non-party 1

Nevertheless, without examining whether the presumption of non-party 1’s written statement in the register of expulsion can be reversed, the court below recognized non-party 1’s own consolation money for the sacrifice of the deceased non-party 15 and judged that the non-party 1 died after the deceased non-party 15 and succeeded to the deceased non-party 78, 79, 80, 81, 82, 83, 84, 85, and 86 in succession. In addition, in the calculation of the deceased non-party 2’s own portion of consolation money for the death of the deceased non-party 15, the non-party 1 was excluded from the calculation of the inheritance portion, and recognized consolation money for the above plaintiffs by calculating the inheritance portion of the deceased non-party 1.

Such judgment of the court below is erroneous in the misapprehension of legal principles as to the presumption power of the entries in the book of removed entries and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The defendant's ground of appeal assigning

6. The plaintiff 117, 117, 79's request for taking over a lawsuit, 2, 3, 4, 24's request for taking over a lawsuit, 5, 6, request for taking over a lawsuit, 7, 8, and 105's request for taking over a lawsuit, are determined on the plaintiff 106's request for taking over a lawsuit.

After the instant final appeal against the lower judgment was filed, Plaintiff 117, an applicant for taking over the lawsuit, died on July 4, 2014, and Plaintiff 116, the applicant for taking over the lawsuit filed on July 23, 2014. Plaintiff 79, the applicant for taking over the lawsuit, 2, the applicant for taking over the lawsuit, 3, the applicant for taking over the lawsuit, and 4, the applicant for taking over the lawsuit, died on February 8, 2015. Plaintiff 24, the applicant for taking over the lawsuit, 5, the applicant for taking over the lawsuit, 6, the applicant for taking over the lawsuit, 7, the applicant for taking over the lawsuit, and 8, the applicant for taking over the lawsuit, died on July 6, 2015. Plaintiff 105, the applicant for taking over the lawsuit, died on August 15, 2015, and Plaintiff 105, the applicant for taking over the lawsuit, on May 215, 2015.

However, according to the records, the above plaintiffs and the defendant filed their respective appellate brief, and as long as the proceedings of the court of final appeal were entered the same stage, there is no need for the inheritors to take over the lawsuit (see Supreme Court Decision 2012Da33532, Jan. 16, 2014). Furthermore, since there is no obstacle to the execution of the judgment by being granted the execution clause to the successors subsequent to the closure of the pleadings, the above applicants for taking over the lawsuit do not have any obstacle to the execution of the judgment by being granted the execution clause to the successors subsequent to the closure of the pleadings

7. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff 15 is reversed, and that part of the judgment of the court of first instance is revoked, and that part of the case is dismissed, and that part of the judgment below against the plaintiff 1, 25, 27, 29, 31, 32, 34, 36, and 37 against the plaintiff 6, 38, 78, 79, 81, 82, 82, 84, 86, and 86, 7, 86, 16, 37, 36, 36, 4, 86, 7, 86, and 8, 16, 37, 16, 36, 36, 37, 37, 36, and 18, 37, and 15, and the remaining part of the judgment below against the plaintiff 1, 2, 36, and 86 are reversed.

[Attachment] List of Plaintiffs: Omitted

Justices Kim Shin (Presiding Justice)