A. Grounds for retrial under Article 422(1)3 of the Civil Procedure Act where a principal or his/her attorney was unable to conduct a substantive procedural act due to a lack of power of attorney by an unauthorized representative

(b) Whether a judgment delivered to the representative of the clan for service has become final and conclusive;

A. Grounds for retrial under Article 422(1)3 of the Civil Procedure Act are not only cases where an unauthorized representative acts on behalf of himself/herself, but also cases where he/she or his/her attorney was unable to act on behalf of himself/herself due to lack of power of attorney.

B. The court shall designate a reference representative as a person to be served with the legal representative and serve the litigation documents, etc. and shall not be deemed to be null and void in a case where the reference representative designated as the person to be served with the reference, so if the judgment was served with the person indicated in the representative of a clan as the person to be served with the reference, and was actually served by the method of supplementary service, the appeal period shall commence from that time and the judgment shall become final and conclusive when the appeal period expires.

(a)Article 422(1)3(b) of the Civil Procedure Act;

Supreme Court en banc Decision 75Da634 Decided May 9, 1978 (Gong1978, 10826) 92Da259 Decided December 22, 1992 (Gong193Sang, 551)

Plaintiff’s transfer list of attorneys

[Defendant-Appellee] Defendant 1 and 3 others (Attorney Lee In-bok, Counsel for defendant-appellee)

Daejeon District Court Decision 92Na2866 delivered on September 30, 1992

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

1. The facts duly established by the court below are as follows.

Defendant clan (hereinafter “Defendant clan”) was a clan organization in which Nonparty 1 was a joint ancestor among the Jinsong, which has set up a sexual code or elected a representative, and the so-called so-called members of the clans and the so-called members of the clan have discussed and dealt with their intention in accordance with the custom of the clans, while the so-called members of the clans and the members of the clan have opened a clan general meeting on February 28, 1990, among 23 members of the clans 18, from among the members of the clans 190, set up the rules of the clans and elected Nonparty 1 as their representative with the consent of all members present.

However, even though the representative of the defendant clan was not specially elected on January 26, 1988, the plaintiff (the plaintiff hereinafter) forged a clan resolution that was elected by the non-party 1, who is the auditor of the defendant clan (the plaintiff's children) to exercise the right to dispose of the forest of this case on or around 1983, and attached to the written complaint. The non-party 1 was the representative of the defendant clan, the address of the defendant clan was stated in the written complaint as the representative of the defendant clan, and the address of the defendant clan as 471, which is the domicile of the defendant clan, and filed a lawsuit subject to the retrial of this case against the defendant clan (the Daejeon District Court 88Gadan39 case) on or around February 26, 198, and was judged in favor of the plaintiff due to the confession of the defendant clan on February 26, 1988. The date of pleading (including a duplicate of the summons of the defendant's clan), and the date of summons was served to the non-party 1 (20).

2. As to the claim of the defendant clan that there is a ground for a retrial under Article 422 (1) 3 of the Civil Procedure Act, since the representative of the defendant clan was defective in the right to conduct litigation on behalf of the defendant clan in the judgment subject to a retrial based on the above fact-finding, the court below held that the lawsuit of this case is unlawful on the ground that the grounds for a retrial under Article 422 (1) 3 of the Civil Procedure Act cannot be deemed to be applicable only when the non-party 1, who is not the legitimate representative of the defendant clan, appeared to be the representative of the defendant clan, and was present at the date for pleading and present at the pleading, and thus, the plaintiff's favor was declared due to the confession of the defendant clan because the judgment subject to a retrial is not delivered to the legitimate representative of the defendant clan, and the appeal period for the judgment cannot be deemed to be a final and conclusive judgment that became final and conclusive without the progress of the judgment.

3. However, a ground for retrial under Article 422 (1) 3 of the Civil Procedure Act constitutes not only a case where an unauthorized representative has actually conducted a substantive procedural act on behalf of the principal, but also a case where the principal or his/her attorney was unable to conduct a substantive procedural act due to a lack of power of attorney (see Supreme Court Decision 92Da259 delivered on December 22, 192). As determined by the court below, the above claim for ownership transfer registration was closed and the date of adjudication was set due to the absence of the representative, but the legal representative of the defendant clan was not given a writ of summons, and thus, it would not be a ground for retrial under the above provision.

In addition, if a court designates a representative as a person who has legitimate power of representation and serve the litigation documents, etc. as a person who has been designated as a person to receive them, such service shall not be deemed null and void. According to the judgment below, according to the judgment of original court, the judgment subject to a retrial was served by the defendant clan as a person to receive the above service date, which is indicated as the representative of the defendant clan, and was actually served by the method of supplementary service, and the judgment subject to a retrial was finally affirmed on March 20, 198.

Nevertheless, the court below's rejection of the lawsuit of this case is erroneous in the misunderstanding of the grounds for retrial under Article 422 (1) 3 of the Civil Procedure Act and the legal principles on service under the same Act, which affected the conclusion of the judgment, on the ground that the court below's rejection of the lawsuit of this case is erroneous in the misapprehension of the legal principles on the grounds for retrial under Article 422 (1) 3 of the Civil Procedure Act and the grounds for retrial under the same Act, since the person who is represented as the representative

4. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)