[재심소장각하명령][집39(1)민,308;공1991,1253]
Whether an attorney of a lawsuit prior to re-adjudication naturally becomes an attorney of the litigation prior to re-adjudication (negative)
Although the pleading in the procedure of a new trial continues to proceed with the procedure prior to the new trial, the litigation prior to the new trial is separated from the litigation prior to the new trial by taking the form of filing a lawsuit prior to the new trial, and unless there is no special authority prior to or after the new trial, the litigation representative prior to the new trial is not naturally a litigation representative.
Articles 425 and 82 of the Civil Procedure Act
1. The case where the court below held that the plaintiff-appellant and 1 other
Seoul High Court Order 90Na417 Dated October 22, 1990
The reappeal is dismissed.
The grounds of reappeal are examined.
Inasmuch as a lawsuit for retrial is the subject matter of a lawsuit prior to a retrial and the attorney was appointed to the Plaintiff of the lawsuit prior to a retrial, it is unlawful to dismiss the petition of this case solely on the ground that the Plaintiff failed to take such measures as inquiring about the address of the Defendant prior to the retrial (the Plaintiff of the lawsuit prior to a retrial) and neglected the period of correction of
On October 5, 1990, the court below served a writ of summons and a duplicate of writ of summons on October 31, 1990 against the defendant for reexamination to the address of the defendant for reexamination as indicated in the writ of summons for reexamination on October 31, 1990, but when the service was impossible, the court below ordered the plaintiff for reexamination to correct the address of the defendant for reexamination within five days on the 11st of the same month, and served on the plaintiff for reexamination on the 15th of the same month. The court below rejected the petition of reexamination on the 22th of the same month because the plaintiff for reexamination failed to correct the address within the above period for reexamination. The facts of the court below's rejection of the petition of reexamination are apparent in the record. Although the pleading in the procedure for litigation for reexamination continues the procedure for reexamination, the lawsuit for reexamination is separated from the litigation for reexamination, but it is not naturally a legal representative for reexamination, and it cannot be said that the court below rejected the petition for reexamination without going through the procedure as alleged in the ground for reappeal.
Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Jae-sung (Presiding Justice)