[1] Whether individual consent of the selection party is necessary when the selection party conducts litigation, etc. pursuant to Article 53 of the Civil Procedure Act (negative)

[2] In a case where Gap et al. filed a lawsuit against Eul et al. and appointed Byung as a designated party for both of them, and Byung agreed to the appointed party Eul et al. to the effect that Byung et al. paid five million won to Byung jointly and severally, Byung shall not withdraw the lawsuit and be held liable for civil and criminal liability, the case holding that Byung's agreement with Eul et al. during the lawsuit does not intend to terminate the lawsuit instead of receiving five million won for Gap et al., and it constitutes an act under the private law (judicial) necessary for the appointed party to perform the lawsuit, and it is effective to all of them, regardless of whether Gap et al. obtained individual consent from Gap et al.

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

[1] Supreme Court Decision 2001Da10748 decided May 30, 2003 (Gong2003Ha, 1424)

Plaintiff (Appointed Party) 1 and one other

Defendant (Appointed Party)

Gwangju District Court Decision 2011Na6317 Decided October 26, 2011

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff (Appointed Party).

The grounds of appeal are examined.

1. Many persons who have a common interest can select the designated parties for all in accordance with Article 53 of the Civil Procedure Act, and such selected parties can perform all the procedural acts for all in favor of the designated parties who have obtained comprehensive authorizations for the performance of the lawsuit from the designated parties, as well as all the judicial acts necessary for the performance of the lawsuit, and the individual consent of the designated parties is not necessary in performing such acts (see Supreme Court Decision 2001Da10748, May 30, 2003).

2. According to the reasoning of the judgment below and the records, the plaintiff 5 and the non-party 1, 2, and 3 (hereinafter "the plaintiff Appointor of the previous lawsuit") filed a lawsuit against the defendant Appointor for the claim for cancellation of ownership registration (hereinafter "previous lawsuit") at the Gwangju District Court 2006Kadan57686, which selected the non-party 1 as the designated party for all of them. The previous lawsuit and the lawsuit of this case are all based on false guarantee, because each registration of ownership transfer in the name of the defendant Appointor on the real estate of this case was made based on a false guarantee document, and thus, they are lawsuits seeking the implementation of the procedure for cancellation registration of each ownership transfer registration on the ground that the registration of invalidity of the cause was made, and the non-party 1 and the defendant Appointor were jointly and severally paid KRW 5 million to the non-party 1 and the defendant 1 were withdrawn, and they are not held liable for the previous civil and criminal charges, and they are not held liable for 7 million won."

Examining these facts in light of the legal principles as seen earlier, the above agreement that Nonparty 1 selected as the designated party for all of the designated parties in the previous lawsuit with the Defendant’s designated parties during the previous lawsuit process is to terminate the previous lawsuit instead of receiving five million won or more for all of the designated parties in the previous lawsuit, and to not institute any identical lawsuit against the Defendant’s designated parties, which constitutes an act under the private law (judicial) necessary for the designated parties to perform the lawsuit that they may perform, and its effect extends to all of them regardless of whether the designated parties obtain individual consent from the designated parties of the previous lawsuit, including the Plaintiff’s designated parties in this case. Accordingly, the lawsuit in this case is brought against the prohibition agreement, and there is no interest in the protection of rights.

In the same purport, the judgment of the court below that judged the lawsuit of this case as unlawful is just, and it cannot be viewed as unlawful as alleged in the grounds of appeal.

In addition, insofar as the instant lawsuit cannot be dismissed due to its illegality, the allegation in the grounds of appeal that the lower court did not determine the legitimacy of the allegation of the cause of the instant lawsuit is without merit.

3. Accordingly, all appeals are 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.

[Attachment] List of Plaintiffs Appointed: omitted

[Attachment] List of Defendant Appointed: omitted

Justices Ahn Dai-hee (Presiding Justice)