[1] Whether a litigation can be revoked on the ground that it was conducted by coercion (negative)

[2] The validity of a judgment imposing a suspension of litigation proceedings due to the death of a party

[1] The provisions pertaining to a legal act under the Civil Act shall not be revoked on the ground that the litigation was conducted by duress, unless there is a special provision or any other special reason, as to the litigation under the Civil Procedure Act.

[2] Although a party who appointed an attorney during the proceedings of the court of first instance died during the period of his/her death, the court of first instance rendered a declaration of the court of first instance due to the failure to suspend the proceedings at the time of his/her death, but at the same time, the original copy of the court of first instance was delivered to the attorney under the principle of representation at the court of first instance, and the proceedings were suspended at the same time. If the judgment was rendered with the party who died at the appellate court, the heir who will take over the proceedings due to the party’s death was under the progress of the proceedings while the party’s death was unable to perform legal proceedings and the judgment was rendered

[1] Article 110 of the Civil Act / [2] Articles 211, 225, 394(1)4, and 422(1)3 of the Civil Procedure Act

[1] Supreme Court en banc Decision 78Da1094 decided May 15, 1979 (Gong1979, 11975), Supreme Court Decision 80Da76 decided August 26, 1980 (Gong1980, 13199), Supreme Court Decision 82Da963 decided May 29, 198 (Gong1984, 1180) / [2] Supreme Court en banc Decision 94Da28444 decided May 23, 195 (Gong195, 2116) (Gong1965, 1965), Supreme Court Decision 94Da21965 decided Feb. 96, 196

Korea

Respondent (Quasi-Review Plaintiff) 1 and 9 others (Attorney Kim Jong-woo, Counsel for the defendant-appellant)

Seoul District Court Decision 93Na7852 delivered on June 28, 1996

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

1. We examine the grounds of appeal by the applicant (quasi-Review Defendant; hereinafter the applicant is only the applicant).

A. After compiling the evidence adopted, the court below acknowledged the facts of the judgment. According to this, the Respondent 2 directly delegated a legal representative in the case of this case to the non-party 1 attorney via the Respondent 2 (Quasi-Re-Re-Appellant 2). However, since the original delegation of litigation is not likely to undermine the stability of litigation procedures as a litigation act prior to the lawsuit, it can be cancelled if the delegation of lawsuit was made by the Respondent, and the above Respondent's delegation of lawsuit in this case can be cancelled because it was caused by the coercion of the investigator belonging to the Martial Law Headquarters under the Martial Law Headquarters under the Claimant. Thus, the court below determined that the Respondent's delegation of lawsuit in this case was legally revoked on April 14, 190, which included the fact that the Respondent's delivery of a series of property acts, including the delegation of lawsuit in this case to the Respondent, and as such, the Respondent's claim for retrial was revoked, and thus the Respondent's right to request a retrial under Article 42131 of the Civil Procedure Act was defective.

B. However, the provisions pertaining to the original legal act under the Civil Procedure Act cannot be revoked on the ground that the litigation act was conducted by coercion, unless there are special provisions or other special circumstances (see, e.g., Supreme Court Decision 64Da92, Sept. 15, 1964; Supreme Court Decision 78Da1094, May 15, 1979; Supreme Court Decision 80Da76, Aug. 26, 1980; Supreme Court Decision 82Meu963, May 29, 198; etc.). Delegation of a legal act is an act for the purpose of generating the power of attorney, and thus does not change.

Therefore, even if the respondent's delegation of agent to the above non-party 1 attorney in the lawsuit of this case was made by coercion of the investigator of the Joint Investigative Headquarters as recognized by the court below, the respondent, who is the delegating, cannot cancel the litigation on the ground of such delegation (or even though the delegating can unilaterally cancel the granting of attorney's power, the delegating's delegation of litigation can not have the retroactive effect even if it was cancelled (see Supreme Court Decision 4291No. 106 delivered on November 4, 1959).

In the end, the judgment of the court below that made a different view is erroneous in the misunderstanding of legal principles as to the cancellation of the delegation of a lawsuit. There is reason to point this out.

2. In addition, according to the records, although the non-party 2, who is the respondent in the judgment of the court of first instance, died on August 19, 192 when the case was pending in the court of first instance, the judgment of the court of first instance was rendered by making the above non-party 2 as a party to the case, and as the above non-party 2 remains alive, the legal representative was appointed under the name of the above deceased and the appeal was filed by the said legal representative. The court of first instance without knowing the death of the above non-party 2, without having been aware of the fact of the death of the above non-party 2, and the judgment was rendered by indicating the above non-party 2 as a party to the lawsuit on June 28, 1996.

In the same way, the above non-party 2's attorney at the time of his death, which led to no interruption of the litigation procedure, and thus the declaration of the judgment of the court of first instance became lawful. However, according to the principle of representation by the court of first instance, the above judgment was delivered to the attorney at the same time (see Supreme Court Decision 83Da850 delivered on October 25, 1983). If this is the case, the court below held that the judgment of the court below is erroneous in the same manner as the case where the inheritor who is to take over the litigation procedure upon the death of the above non-party 2 was sentenced to the litigation procedure under the circumstance that the heir who is to take over the litigation procedure cannot perform the legal procedure under the law and was sentenced to the judgment of the court below. (See Supreme Court Decisions 94Da28444 delivered on May 23, 1995, 94Da24121 delivered on February 9, 1996, the part of the judgment below against the non-party 2 cannot be maintained.

3. Accordingly, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Sung-sung (Presiding Justice)