In a case where a third party asserted that he/she succeeded to the right, which is the object of the lawsuit while the lawsuit is pending, and where the fact of succession is not recognized as a result of the trial without any apparent defect in the eligibility for succession, whether the court may deliberate and decide on the claim of the succeeding intervenor who has withdrawn from the court (negative)

Article 81 of the Civil Procedure Act

Supreme Court Decision 2002Da70211, 70228 Decided March 14, 2003 (Gong2011Sang, 1040)

Intetrac Co., Ltd. (Attorney Cho Dong-dong, Counsel for the defendant-appellant)

Plaintiff Successor 1 and two others (Attorneys Kim Young-soo et al., Counsel for the plaintiff-appellant-appellee)

Defendant 1 and 15 others

Seoul Central District Court Decision 201Na41559, 59642 decided July 19, 2013 (Succession Intervention)

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

The grounds of appeal are examined.

1. As to the second ground for appeal

Based on its stated reasoning, the lower court determined that the transfer registration of ownership on each of the instant buildings constitutes a litigation trust in which the Plaintiff’s succeeding intervenors primarily intended to have the Plaintiff’s succeeding intervenors conduct litigation.

Examining the record in accordance with the relevant legal principles, the lower court’s aforementioned determination was somewhat inappropriate in its reasoning, but its conclusion is justifiable. In so doing, the lower court did not err by misapprehending the legal doctrine on the trust in a lawsuit or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

2. Regarding ground of appeal No. 1

In a case where a third party claims that he succeeded to the right, which is the object of a lawsuit while the lawsuit is pending, and participates in the lawsuit, the issue of whether the facts alleged on the ground of the application for intervention constitutes a successor is a matter to be determined in relation to the propriety of the claim by the succeeding intervenor, and thus, it does not constitute a judgment dismissing the application for intervention by the succeeding intervenor unless the fact of succession is recognized as a result of the trial (see Supreme Court Decision 2002Da70211, 7028, Mar. 14, 2003). Furthermore, in a case where the application for intervention by the succeeding intervenor is lawful, the litigation relationship between the succeeding intervenor and the other party shall be deemed terminated by the succeeding intervenor withdraws from the lawsuit with the consent of the other party. Thus, the court cannot deliberate and decide on the claim by the succeeding intervenor withdrawn (see Supreme Court Decision 2010Da103048, Apr. 28, 2011).

The court below dismissed all the claims of the Plaintiff’s succeeding intervenor on the ground that the Plaintiff’s succeeding intervenor cannot accept the instant claims based on the premise that the Plaintiff’s succeeding intervenor is the owner of each of the instant buildings.

Upon examining the records in accordance with the above legal principles, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to participation in succession and withdrawal from a lawsuit, or in the misapprehension of legal reasoning or omission

3. Conclusion

Therefore, 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 on the bench.

Justices Lee Sang-hoon (Presiding Justice)