Whether the withdrawal of a lawsuit by mistake against the intent of the internal deliberation is null and void (negative)

Article 266 of the Civil Procedure Act

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Han-soo et al., Counsel for plaintiff-appellant)

Plaintiff

Defendant (Law Firm Doz, Attorneys Nam Jung-gu et al., Counsel for the defendant-appellant)

Seoul Western District Court Decision 2016Na38744 decided July 4, 2017

The instant lawsuit was concluded as the withdrawal of the Plaintiff’s lawsuit on July 31, 2017.

The withdrawal of a lawsuit by the plaintiff is the litigation against the plaintiff's court to extinguish the continuation of the lawsuit by withdrawing the lawsuit filed by the plaintiff, and the litigation act is bound to determine whether the lawsuit is effective on the basis of its indication rather than the intention of internal deliberation unlike the act of general private law. Thus, even if the plaintiff withdraws the lawsuit by mistake against the intention of internal deliberation, it shall not be deemed null and void (see Supreme Court Decision 95Da11740 delivered on October 24, 1997, etc.).

According to the records, on July 31, 2017, the Plaintiff submitted to this court a written withdrawal of the lawsuit to the effect that “the Plaintiff shall withdraw the entire lawsuit in this case,” and on the same day, the Plaintiff’s attorney submitted a written consent to the withdrawal of the lawsuit to this court.

However, the Plaintiff, upon submitting the written withdrawal of the appeal as of July 2, 2017, submitted the written withdrawal of the appeal as of July 31, 2017, through the document stating “the withdrawal of the appeal”, the Plaintiff asserts that “the withdrawal of the appeal cannot be accepted because the written withdrawal of the appeal was corrected on August 2, 2017,” and that “the document charactered with the written withdrawal of the appeal as of July 31, 2017, in order to submit the written withdrawal of the appeal as an attached file, and the actually submitted document appears only to be the withdrawal of the appeal without knowledge of the reasons.” Moreover, in light of the legal principles as seen earlier, the Plaintiff asserted that the Plaintiff’s withdrawal of the appeal cannot be seen as null and void solely on the ground that the Plaintiff submitted the written withdrawal of the appeal as of July 31, 2017 as of August 14, 2017.”

Therefore, the instant lawsuit is declared to be terminated by the Plaintiff’s withdrawal of the lawsuit on July 31, 2017. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)