[1] Meaning of “joint interest” under Article 53 of the Civil Procedure Act, and in a case where a lawsuit on the appointed party’s part of the lawsuit is withdrawn or the judgment becomes final and conclusive, whether the appointed party is disqualified (affirmative)

[2] The time when the judgment becomes final and conclusive in a case where an unlawful appeal is filed

[1] Article 53 of the Civil Procedure Act / [2] Article 498 of the Civil Procedure Act

[1] Supreme Court Decision 97Da362 delivered on July 25, 1997 (Gong1997Ha, 2678), Supreme Court Decision 2001Da10748 Delivered on May 30, 2003 (Gong2003Ha, 1424), Supreme Court Decision 2003Da34038 Delivered on November 14, 2003 (Gong2003Ha, 2348), Supreme Court Decision 2006Da28775 Delivered on September 28, 2006 (Gong2006Ha, 1815) / [2] Supreme Court Decision 2000Da25798, 25804 Delivered on February 27, 2001

Plaintiff (Appointed Party)

Mez Fire Insurance Co., Ltd. (Attorney Park Jae-in, Counsel for the plaintiff-appellant)

Cheongju District Court Decision 2012Na3754 decided February 19, 2013

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Many persons who have a common interest may select the appointed parties to be all the parties in accordance with Article 53 of the Civil Procedure Act, and such appointed parties may perform all the procedural acts for all the appointed parties until the completion of the lawsuit in question, unless there is a special agreement with the appointed parties who have been comprehensively authorized to perform the lawsuit from the appointed parties (see Supreme Court Decisions 2001Da10748, May 30, 2003; 2003Da34038, Nov. 14, 2003, etc.). Here, the term “joint interest” refers to the relation between several persons as co-litigants and the main method of attack defense (see, e.g., Supreme Court Decision 97Da362, Jul. 25, 1997). In cases where a lawsuit against the appointed parties is withdrawn or the judgment becomes final and conclusive, the appointed parties become disqualified as a matter of course due to the withdrawal of the part concerning the appointed parties, etc.

On the other hand, a judgment shall not become final and conclusive during the period in which an appeal may be filed or when a legitimate appeal is filed within such period (Article 498 of the Civil Procedure Act), and when a judgment dismissing an unlawful appeal is final and conclusive when the judgment dismissing such unlawful appeal becomes final and conclusive (see Supreme Court Decision 2000Da25798, 25804, Feb. 27, 2001).

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. The plaintiff (Appointed Party; hereinafter the "Plaintiff") and the non-party 1, 2, 3, and 4 are children of each of the non-party 5, and the non-party 5 selected the plaintiff as the designated party, and filed a lawsuit of this case against the defendant against the non-party 5, claiming payment of consolation money of KRW 3 million for actual income and consolation money of KRW 79,222,690, and the non-party 1, 2, 3, and 4, respectively.

B. On July 4, 2012, the first instance court rendered a judgment that “The Defendant paid KRW 11,982,576 to Nonparty 5, KRW 5 million to the Plaintiff, KRW 1,000,000 to Nonparty 1, Nonparty 2, 3, and 4, respectively, and the remainder of the Plaintiff’s claim is dismissed, and KRW 80,000,000 to the Plaintiff, KRW 1,000,000 to the Appointor 5, and KRW 5,000 to the Plaintiff

C. On July 23, 2012, the Plaintiff submitted a petition of appeal stating that “The part against the Plaintiff among the judgment of the first instance shall be revoked, and the Defendant shall pay to Nonparty 5 KRW 35,432,335 and delay damages therefor, and the costs of the lawsuit shall be borne by the Defendant in both the first and second instances.”

D. On August 8, 2012, the lower court recommended the Plaintiff to revise the purport of the appeal to comply with the provision of the law, and on August 27, 2012, the Plaintiff submitted an application for correction of the purport of the appeal corrected to Nonparty 5, stating that “The part of the first instance judgment against the Plaintiff and the part against the Claimant Nonparty 5 is revoked, respectively, and the Defendant shall pay 35,432,335 won to the Appointed 5 and its delay damages, and the costs of the appeal shall be borne by the Defendant in both the first and second instances.”

E. However, the lower court determined that (1) the Plaintiff’s appeal against Nonparty 5 among the judgment of the first instance is unlawful, and that the part against the Plaintiff himself and the remaining designated parties was finalized as it was, on the ground that the Plaintiff did not appeal against the part against Nonparty 5, and that the part of the judgment of the first instance became final and conclusive. (2) The Plaintiff lost the status of the designated party against Nonparty 5 due to the extinguishment of a joint interest relationship with other designated parties. Therefore, the Plaintiff’s appeal filed in the position of the designated party against Nonparty 5 was deemed unlawful. Accordingly, the lower

3. Examining the above facts in light of the legal principles as seen earlier, in relation to the plaintiff's claim, the plaintiff appears to have lodged an appeal against the judgment on the costs of lawsuit among the judgment of the court of first instance, and even if the appeal on the costs of lawsuit is permitted only when all or part of the appeal on the merits is justified, the plaintiff shall not be deemed to have lost his status as a party to the lawsuit, as long as the judgment on the appeal is not finalized, unlike the judgment of the court below. Furthermore, the judgment on the costs of lawsuit in the judgment of the court of first instance is conducted by the plaintiff as the designated party and is included in the part of the litigation costs relating to the claim of the designated party non-party 5, and in relation to such objection, the appellate court shall be deemed to have maintained a common interest among the plaintiff and the designated party non-party

In addition, the plaintiff's appeal for the non-party 5 against the appointed party after the judgment of the court of first instance has expired at the time of submitting a petition of appeal for the non-party 5. Thus, the status as a party to the lawsuit and the common interest in the claim on the merits cannot be lost. Thus, the appointed party's qualification shall be maintained. In light of this, the appeal filed for the non-party 5 against the appointed party cannot be deemed unlawful.

4. Nevertheless, on the erroneous premise that the part of the judgment of the court of first instance concerning the plaintiff himself was confirmed as it was not appealed, the court below judged that the appeal filed by the plaintiff in the position of the designated party against the non-party 5 is unlawful, since the joint interest relationship between the plaintiff and the non-party 5 ceased to exist, and the plaintiff lost the status of the designated party against the non-party 5. In so determining, the court below erred by misapprehending the legal principles on the purport of appeal

In addition, as seen earlier, the lower court did not render any judgment on the Plaintiff’s appeal against the judgment on the costs of lawsuit among the judgment of the first instance. As such, the part on appeal is still pending in the lower court. Therefore, the lower court shall have pointed out that the said part should be deliberated and determined after remanding.

5. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Appointeds: Omitted

Justices Ko Young-han (Presiding Justice)