[1] In the case of an unincorporated association and foundation, whether the party ability is recognized only when a representative or manager exists (affirmative)

[2] Whether a medical care center for the elderly or a medical care center for the elderly has the ability to become a party (negative in principle)

[1] Article 51 of the Civil Procedure Act provides that “The party capacity shall be governed by the Civil Act and other Acts, except as otherwise provided for in this Act.” Article 52 of the same Act provides that “An association or foundation which is not a corporation may become a party to a lawsuit in the name of such association or foundation, if it has a representative or manager.” Therefore, a natural person or a juristic person who has the capacity to be entitled to a lawsuit, in principle, may become a party to a lawsuit, but an association or a foundation which is not a juristic person shall be entitled to a party to a lawsuit

[2] A medical care center for older persons or a medical care center for older persons generally in need of help due to a scarcity disease, etc. refers to a facility that provides meals, medical care and other conveniences necessary for daily life, i.e., medical care facilities for older persons. This is clear that they are not corporations, and is not an unincorporated association or foundation, and thus, in principle, the ability of parties in civil litigation is not recognized.

[1] Articles 51 and 52 of the Civil Procedure Act / [2] Articles 51 and 52 of the Civil Procedure Act, Article 34 (1) 1 of the Welfare of the Aged Act

○○○○○ (Attorney Kim Hong-Gyeong et al., Counsel for the defendant-appellant)

Defendant

Seoul Southern District Court Decision 2017Na59466 decided March 22, 2018

The judgment below is reversed, and the case is remanded to the Seoul Southern District Court.

Judgment ex officio is made.

1. Article 51 of the Civil Procedure Act provides that “The party ability shall be governed by the Civil Act and other Acts, except as otherwise provided in this Act.” Article 52 of the same Act provides that “An association or foundation which is not a juristic person may, in the event that it has a representative or manager, become a party to a lawsuit in the name of such association or foundation.” Therefore, a natural person or a juristic person who has the capacity to become a party to a civil lawsuit, in principle, is capable of becoming a party to a lawsuit, but an association or a foundation which is not a juristic person,

A medical care center for older persons or a medical care center for older persons generally in need of help due to sexual illness, etc. refers to a facility that provides meals, medical care, and other conveniences necessary for daily life for older persons, i.e., medical welfare facilities for older persons. This is not a non-corporate association or foundation, the representative of which is clear that it is not a corporation, and thus, in principle, the ability of parties

2. According to the judgment of the court below and the record, the plaintiff is the name of a sanatorium for older persons located in Geumcheon-gu Seoul ( Address omitted), and there is room to view that the plaintiff is not recognized as a party's ability because it does not fall under a corporation, an unincorporated association, or a foundation under

The court below should first determine whether the plaintiff has the ability to be a party in civil procedure by examining whether the plaintiff is merely the name of a sanatorium for older persons, and whether the non-corporate association or foundation has the substance. This part of the lawsuit is so excessive that the court below erred by misapprehending the legal principles on the capacity to be a party, which affected the conclusion of the judgment.

3. Therefore, without further proceeding to decide on the grounds of appeal, the judgment of the court below is reversed ex officio, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent

Justices Min You-sook (Presiding Justice)