The case holding that the replacement of an absentee's property administrator without any special circumstance required to be replaced is an illegal disposition beyond the scope of discretion.

Even if appointment or dismissal of an absentee administrator is a court's discretionary act, it is unlawful to replace the administrator with another administrator without any particular reason to view that there is a situation where the administrator should replace the administrator, such as that there is a reason to indicate the ability of the administrator with respect to an administrator appointed for sharing the property, in light of the purport of the absentee property management system, even though such appointment or dismissal is a court's discretionary act, in light of the purpose of the absentee property management system.

Article 34 of the Family Inquiry Act

Supreme Court Order 64S11 Dated March 16, 1965

Attorney Kim Jong-hoon, Counsel for the special appellant-appellant

Other Party

Jeju District Court Decision 86Ra36 dated April 8, 1986

The original adjudication shall be reversed, and the case shall be remanded to the Jeju District Court.

The grounds of special appeal are examined.

Whether to appoint an administrator of an absentee is a person belonging to the discretion of the court responsible for the management and protective disposition of the absentee's property, or an administrator who performs his duties with the care of a good manager for the management of the remaining property by the absentee, generally taking into account the duties of the administrator who performs his duties with the care of a good manager for the management of the property, and even if he is a relative of the absentee or a third party without such relationship, he may appoint the administrator as the administrator, if

Furthermore, the court may replace an administrator at any time (Article 34(1) of the Family Trial Rules), if there is any reason deemed inappropriate for the administrator appointed, or if there are other special circumstances (Article 34(1) of the Family Trial Rules).

However, even if an administrator's appointment or dismissal is a court's discretionary act, it shall be appointed in consideration of the purpose of the absentee property management system as seen above, and if such appointment is deemed to be contrary to the rule of experience or logic and goes against the discretionary power, it shall be deemed an illegal disposition.

The lower court, on September 23, 1985, appointed a special appellant as an administrator for the management of the property of the absentee 1 and 2, upon the application of the special appellant, on the ground that the special appellant was appointed as an administrator for the management of the property of the absentee 1 and 2, accepted the other party’s request for replacement, and tried to dismiss the special appellant 1 on April 8, 1986 and appoint the administrator for the non-party 1 as an administrator. According to the records, the property owned by the absentee was owned by the non-party 2 and the non-party 3 as an heir, and the special appellant and the non-party 2 acquired ownership as an heir. As such, the special appellant are not only in the relationship between the absentee and the non-party 2, and the non-party 1’s father and the non-party 2’s mother, it is recognized that the appointment of the administrator for the above absentee was merely a claimant for the above reasons. Moreover, the lower court, without considering the fact that the special appellant was inappropriate for replacement of the non-party 2 as an administrator.

Therefore, even though there are special circumstances to view that an administrator needs to replace an administrator, such as there is a reason to indicate his/her side aptitude, etc., it cannot be said that there was an error of law by misapprehending the legal principles on appointment of an administrator without any particular examination, and thus, the special appeal is justified.

Therefore, the original adjudication is reversed, and the case is remanded to the Jeju District Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-soo (Presiding Justice)