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(영문) 서울중앙지방법원 2017.09.15 2017나16470

양수금

Text

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. The plaintiff's successor's motion to participate in the succession.

Reasons

1. An ex officio application for intervention by succession regarding the legitimacy of the application for intervention by succession constitutes a kind of lawsuit.

A case constitutes a litigation requirement and required to participate

If there are any defects on a case, they shall be rejected by a judgment following pleadings.

A written application for intervention by succession shall state the purport of participation and the reasons for participation (Articles 81, 79(2), and 72(1) of the Civil Procedure Act), and shall state the purport of participation and the reasons for participation as essential matters to the extent that the application for intervention by succession corresponds to the filing of a lawsuit.

(Article 249 of the same Act). On April 25, 2017, the Plaintiff’s succeeding intervenor submitted a written application for participation in succession stating only “the cause of succession” without stating the purport of participation, reasons for participation, purport of participation, claim, and cause of claim in the trial of the competent court. The Plaintiff’s succeeding intervenor was served with the presiding judge’s order of correction as of July 20, 2017, but rejected the said order of correction by the date of closing argument.

Ultimately, the Plaintiff’s motion for intervention by succession is unlawful.

2. According to the purport of the entire argument of the Plaintiff’s claim determination (including the materials attached to the application for intervention in succession), on July 22, 2012, which was after the judgment of the court of first instance was rendered, the record of the first instance trial of the instant claim against the Defendant was discarded after the lapse of the preservation period, and the cause of the instant claim claim, including the cause of the instant claim, cannot be known, and the Plaintiff or the succeeding intervenor did not submit the materials at the trial.

Inasmuch as the Plaintiff’s assertion on the claim in this case was transferred to P&S assets management, and on March 25, 2013, it can be acknowledged that he/she notified the Defendant of the above transfer. As such, the Plaintiff’s assertion on the claim in this case was without merit.

3. Thus, the plaintiff's claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted and the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed, and the plaintiff'