[이혼][공1982.12.15.(694),1084]
A. Whether the death of one spouse while the divorce lawsuit is pending and whether the divorce lawsuit is terminated
(b) The validity of the judgment imposing the death of one spouse while the divorce lawsuit is pending and whether an appeal against the judgment is appropriate;
A. Since the right to claim a judicial divorce is a right under the trust of the husband and wife, the heir cannot take over the litigation procedures if one spouse dies while the divorce lawsuit is pending, and in such a case, there is no special provision that the prosecutor can take over the litigation procedures, so it is reasonable to interpret that the lawsuit in this case is terminated simultaneously with the death of the claimant.
B. The judgment of the court below which rejected the appeal on the ground that the appeal of this case was unlawful after the lapse of the appeal period, which is a peremptory term, without excluding the death of the claimant for divorce, shall be dismissed as it has the inherent form of conflict between the two parties. However, since the civil procedure is in its inherent form, the appeal against the deceased person may not be filed, and the appeal filed by the respondent against the deceased claimant who had already died shall be dismissed as it is unlawful and defective as it cannot be corrected.
A. Article 840 of the Civil Act, Article 211 of the Civil Procedure Act, Article 211 of the Civil Procedure Act, Articles 211, 190, and 383 of the Civil Procedure Act
Claimant
[Defendant-Appellant] Defendant 1
Gwangju High Court Decision 81Reu3 delivered on July 14, 1981
The appeal shall be dismissed.
The costs of appeal shall be borne by the appellee.
On the other hand, according to a certified copy of the family register bound in the records, it is obvious that the claimant died on July 6, 1981, which was after the conclusion of the argument of the court below. Since the claim for judicial divorce is a right under the binding force of the husband and wife, during the duration of divorce lawsuit, the heir may not take over the proceedings, and in such a case, there is no special provision that the prosecutor may take over the proceedings, and it is reasonable to interpret that the lawsuit of this case was naturally terminated at the same time as the death of the claimant.
Therefore, the judgment of the court below which dismissed the appeal on the ground that the appeal of this case was unlawful after the lapse of the appeal period, which is the peremptory term, without clarifying the above fact of the claimant's death, shall be null and void. However, since the civil lawsuit is in its essential form, the conflict between the two parties, and thus, it cannot be filed against the deceased person, and the appeal of this case which the respondent had already died as the other party to the appeal of this case shall be null and void and its defect shall not be corrected.
Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the defendant. It is so decided as per Disposition by the assent of all participating judges.
Justices Kim Jung-soo (Presiding Justice)