[1] Where a request for intervention by succession is illegal due to a defect in the requirements for intervention, whether the request for intervention by a judgment should be dismissed (affirmative), and whether the judgment dismissing the request for intervention by succession by succession by improper means must be accompanied by the judgment of the original party (negative)

[2] In a case where the court rendered a judgment only on the lawsuit between the succeeding intervenor and the other party on the premise that the succeeding intervenor's application for intervention and the withdrawal of the lawsuit by the succeeding intervenor are lawful, and the succeeding intervenor's application for intervention is found unlawful in the appellate court, whether the appellate court may examine and determine the claim of the succeeding

[3] In a case where Gap filed a lawsuit against Eul for the return of unjust enrichment against Eul, asserting that Byung received the claim for return of unjust enrichment from Eul, which is the object of the lawsuit, and Gap withdrawn from the lawsuit with Eul's consent, and the first instance court rendered a judgment dismissing Byung's claim against Byung on the premise that Byung's succession to the lawsuit is legitimate, Byung filed an appeal, the case holding that Byung's acceptance of the claim for return of unjust enrichment against Eul is null and void, and Byung's acceptance of the claim for return of unjust enrichment against Eul during the lawsuit of the first instance court during the lawsuit of the first instance, the first instance court's revocation of the first instance judgment and dismissed Byung's application for intervention, and the court's rejection of Gap's claim is justified

[1] Article 81 of the Civil Procedure Act / [2] Articles 80 and 81 of the Civil Procedure Act / [3] Articles 80 and 81 of the Civil Procedure Act

[1] Supreme Court Order 2006Ma1171 dated August 23, 2007

The Intervenor succeeding the Plaintiff

Defendant

Seoul Central District Court Decision 201Na15505 Decided September 8, 2011

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff’s successor.

We examine the grounds of appeal.

1. According to Article 81 of the Civil Procedure Act, in case where a third party succeeds to the whole or part of the right or obligation which is the object of a lawsuit while the lawsuit is pending before the court, such third party may apply for intervention in the court in which the lawsuit is pending. Such application for intervention in succession falls under a kind of lawsuit, and the requirements for intervention fall under the requirements for litigation, and thus, if there is any defect in the requirements for intervention, the application for intervention shall be dismissed by judgment through pleading (see Supreme Court Order 2006Ma1171, Aug. 23, 2007). In this case, a judgment dismissing the application for intervention in succession is not necessarily required to be accompanied with a judgment on the lawsuit

Meanwhile, an intervenor who has transferred the right or obligation, which is the object of a lawsuit, to the succeeding intervenor while the lawsuit is pending, may withdraw from the lawsuit with the consent of the other party, and the withdrawal of such lawsuit also has the effect of the judgment on the withdrawing party (Article 80 of the Civil Procedure Act). In such a case, where the intervention in succession is illegal, the withdrawal of the lawsuit by the original party is allowed only if it is legitimate, and where the intervention in succession is illegal, the withdrawal of the lawsuit by the original party is not allowed, and the litigation relationship between the original party and the other party remains effective. Therefore, even though the application for intervention by the succeeding intervenor is inappropriate, the court rendered a judgment only on the lawsuit between the succeeding intervenor and the other party on the premise that the application for intervention by the succeeding intervenor and the withdrawal of the lawsuit by the original party are legitimate, and in the

2. According to the reasoning of the judgment below and the records, ① the Plaintiff filed a claim for return of unjust enrichment against the Defendant with the first instance court; ② during the lawsuit in question, the Plaintiff’s succeeding intervenor (hereinafter “the Intervenor”) asserted that the Plaintiff received the claim for return of unjust enrichment, which is the object of lawsuit, from the Plaintiff and filed an application for intervention in succession; ③ the Plaintiff withdrawn from the lawsuit with the Defendant’s consent; ③ the court of first instance rendered a judgment dismissing the Intervenor’s claim against the Defendant on the premise that the Intervenor’s succeeding intervention is lawful; ③ the Intervenor filed an appeal; ④ the appellate court, which was the appellate court, determined that the Plaintiff’s transfer of the Plaintiff’s claim for return of unjust enrichment against the Defendant to the Defendant for the performance of litigation during the proceeding in the first instance court, was null and void, and thus, it

Examining in light of the legal principles as seen earlier, the lower court revoked the first instance judgment dismissing the Intervenor’s claim against the Defendant, and dismissed the Intervenor’s application for intervention in succession, and the measure that did not determine the validity of the Plaintiff’s claim is justifiable

The Supreme Court Decision 90Da19329, 19336 Decided March 22, 1991 cited by the Intervenor refers to the purport that when an independent party intervention in a lawsuit by an independent party is lawful and rendering a judgment on the merits where there is a need for unity and confirmation as to the lawsuit between the Plaintiff, the Defendant, and the Intervenor, a final judgment shall be rendered at one time as to the claim between the three parties, once in a case where an independent party intervention in the lawsuit between the Plaintiff, the Defendant, and the Intervenor is rendered. Thus, the judgment of the court below is different from the case in which the intervention by succession is deemed unlawful, and the application

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Il-young (Presiding Justice)