The other party's consent to the withdrawal of the preservation lawsuit

The defendant's consent in the withdrawal of a lawsuit is to defend the risk of being brought to the same lawsuit concerning the same claim with the judgment of dismissal of the claim, so the provisions of Article 239 (2) of the Civil Procedure Act shall not apply to a preservation lawsuit.

Article 239 of the Civil Procedure Act

[Plaintiff-Appellee] 137 delivered on July 21, 1960 (Supreme Court Decision 8310 delivered on July 21, 1960; Supreme Court Decision 701(1)1089 delivered on July 21, 196

Applicant

Respondent 1 and 3 others

Busan District Court (72Ka1922)

The lawsuit of this case is terminated on July 25, 1972 by the applicant's withdrawal of the application.

(1) As the head of the Respondent's Respondent's Respondent's office, the Respondent 2 and 3 shall be the head of the Dong branch, and the Respondent 4 shall be suspended from performing their duties as the standing advisers of the Dong branch.

(2) A person designated by the court during the period of the suspension of the above execution of duties shall act on behalf of the head of the above branch, the head of the site, and the standing adviser.

(3) Litigation costs shall be borne by the respondent, etc.

The original judgment shall be revoked.

The request for a provisional disposition by the petitioner is dismissed.

All the costs of lawsuit shall be borne by the applicant.

On July 25, 1972, the respondent asserts that the provisional disposition judgment in the case of the application for provisional disposition in this case is rendered after the oral argument and the judgment is rendered. As such, the withdrawal of the application after the oral argument requires the consent of the respondent who is the other party. Thus, this case is interpreted to require the consent of the other party in the case of the application for provisional disposition after the oral argument, so it is reasonable to interpret that the court below's order provisional disposition as a judgment upon the request of the applicant, after oral argument, has been made by the respondent and continued to the party member as the respondent's appeal. As the respondent's decision is nothing more than an ordinary final and conclusive judgment, but it is nothing more than a defense to defend the risk that the defendant would be subject to the same claim with the decision of dismissal, and therefore, the restriction provisions on the withdrawal of non-party under Article 239 (2) of the Civil Procedure Act are not applied in the case of the preservation lawsuit, but it is withdrawn regardless of whether the other party's consent exists even in the case falling under the above provisions.

Therefore, in this case, the applicant's withdrawal of the objection on July 25, 1972 shall take effect immediately regardless of the respondent's objection, and this lawsuit is completed, and therefore, the respondent's application for fixed-date designation is without merit, and it is so decided as per Disposition.

Judges Choi Hon-ro (Presiding Judge) Kim Jong-ju