[집행문부여에대한이의등][공1998.7.15.(62),1844]
The validity of a judgment rendered with respect to the interruption of litigation procedures by the death of a party, and whether the succeeding execution clause may be granted pursuant to such judgment (affirmative)
In a case where a judgment is rendered after the interruption of litigation procedures due to the death of one of the parties during the course of litigation and the pleading is concluded, the judgment is unlawful in the procedure that results in the exclusion of the legitimate assignee who may participate in the lawsuit from the authority of the legal assignee, but such judgment cannot be deemed null and void as a matter of course. However, the judgment can only seek its revocation through an appeal or retrial on the ground of defects in the power of representation, just as in the case where the judgment was not lawfully represented by an agent. As such, it is reasonable to grant an execution clause by applying mutatis mutandis Article 481 of the Civil Procedure Act to implement compulsory execution against the deceased's successor or his successor based on the judgment
Articles 211, 225, 394(1)4, 422(1)3, and 481 of the Civil Procedure Act
Supreme Court en banc Decision 94Da2844 delivered on May 23, 1995 (Gong1995Sang, 2116) Supreme Court Decision 94Da24121 delivered on February 9, 1996 (Gong1996Sang, 865) Supreme Court Decision 96Da35484 delivered on October 10, 1997 (Gong1997Ha, 3397)
Special Appellants
Jeonju District Court Order 97Kao186 dated January 12, 1998
The special appeal is dismissed.
The grounds for special appeal are examined.
In a case where the interruption of a litigation procedure due to the death of one of the parties during the proceeding, and the pleading is terminated and a judgment is pronounced, the judgment is unlawful in the procedure that results in the exclusion of the legitimate assignee who can participate in the lawsuit, but the judgment cannot be deemed null and void as a matter of course. However, the judgment can only seek the revocation by an appeal or retrial on the ground of defects in the power of representation (see, e.g., Supreme Court Decision 94Da28444, May 23, 1995). Thus, it is reasonable to grant the succession execution clause by applying mutatis mutandis Article 481 of the Civil Procedure Act in order to enforce compulsory execution against the deceased's successor or his successor based on the judgment expressed by the deceased as a party.
In light of the above legal principles and the records, the measure taken by a junior administrative officer to grant the succession execution clause to the judgment of this case where the deceased person is named as the defendant is justifiable, and there is no illegality such as the theory of lawsuit. The argument is without merit.
Therefore, the special appeal of this case is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Shin Sung-sung (Presiding Justice)