Whether a party shall state his/her opinion on the matters stated in the complaint, written answer, and other briefs submitted by the party who was absent from the court on the date of pleading until the date of pleading, in order to proceed with the pleading (affirmative)

According to Article 148(1) of the Civil Procedure Act, where one party is absent on the date for pleading, whether to postpone the date for pleading shall belong to the court’s discretion. However, when only the party present at the hearing proceed with the pleading, it shall be deemed that the written complaint, reply, and other matters described in the written statement submitted by the absent party up to that time.

Article 148(1) of the Civil Procedure Act

Plaintiff

Defendant 1 and two others

Busan District Court Decision 2007Na986 Decided December 7, 2007

Of the part of the judgment below against the plaintiff, the part of the claim against the defendant 1 corporation is reversed, and that part of the case is remanded to Busan District Court Panel Division. The remaining appeal is dismissed. The costs of appeal as to the dismissal of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. As to the part of the claim against the defendant 2 and 3

The court below determined that the plaintiff's claim against the defendant 2 and 3 on the premise that the registration of preservation of ownership in the name of the defendant 1 corporation (hereinafter "the defendant corporation") on the real estate of this case is valid registration in accordance with the substantive legal relations, and that the plaintiff's claim against the defendant 2 and 3 on the premise that the registration of preservation of ownership in the name of the defendant company was invalid, cannot be accepted.

Examining the reasoning of the judgment below in light of the records, the above fact-finding and judgment of the court below are just and acceptable, and there are no errors in the misapprehension of facts due to violation of the rules of evidence or misapprehension of legal principles as to original acquisition of building ownership, as otherwise alleged in the ground of

2. As to the part of the claim against the defendant company

After compiling the adopted evidence, the court below acknowledged the facts as stated in its reasoning, and determined that the plaintiff's claim for cancellation of the above registration of ownership preservation against the defendant company is not acceptable since the registration of ownership preservation of the defendant company's real estate of this case is valid in accordance with the substantive legal relations

However, we cannot accept the above determination by the court below for the following reasons.

Article 148(1) of the Civil Procedure Act provides that "if an applicant or defendant fails to appear on the date for pleading, or fails to present on the merits while he/she attends, he/she shall be deemed to have stated the complaint, reply, and other matters stated in the briefs submitted by him/her, and thus, he/she may order the other party present at the hearing to present at the meeting." According to the above provisions, where a party is absent on the date for pleading, whether or not to proceed with the pleading shall be deemed to fall under the court's discretion. However, when the party present at the hearing merely makes a pleading, it shall be deemed that the party who attended the hearing has stated the matters stated in the complaint, reply

According to the records, on February 5, 2007, after the decision of the court of first instance was rendered, the representative director of the company was changed to the non-party and the non-party was registered as the representative director on the corporate register of the defendant company on the 6th of the same month. The defendant company (the non-party representative) submitted a written reply stating the following facts: on March 13, 2007, the court below acknowledged the plaintiff's claim against the defendant company; on April 25, 2007, the plaintiff submitted a written reply stating that "the plaintiff's claim against the defendant company was recognized, and the appeal was induced, and there is no other ground for defense," and on June 22, 2007, the defendant company submitted a written withdrawal of the legal brief stating that "a withdrawal of the legal brief submitted on March 13, 2007 shall be made at the court below's date for preparatory pleading or on the date for preparatory pleading, and the court below did not appear at the court below's oral proceedings or on the date for preparatory pleading.

In light of the above legal principles and the above facts (On the other hand, the authority of the above representative director is restricted or the authority to prepare a document and submit it to the court cannot be deemed to be defective solely on the ground that an application for provisional disposition of suspension of the representative director's duties has been filed against the Nonparty of the changed representative director of the defendant company.) The court below did not regard the date for preparatory pleading or the date for preparatory pleading as stated in the written reply submitted on April 25 or June 22, when the defendant company was absent, and did not consider the matters as stated in the written reply submitted on June 22, 200, and made a decision after the closure of pleadings in violation of Article 148 (1) of the Civil Procedure Act, which affected the conclusion of the judgment. The plaintiff's ground for appeal

3. Therefore, the part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal is dismissed. The costs of appeal as to the dismissal of the 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 Yang Sung-tae (Presiding Justice)