[1] Whether it is permissible to correct a party indication in a case where a party indication is not recognized to the defendant indicated in the written complaint (affirmative)

[2] In a case where a guarantor Byung who subrogated for the debt of the debtor Gap to the bank Eul, was aware of the debtor Gap's death and filed a lawsuit, the case affirming the judgment below that the guarantor Byung can correct the defendant's indication as the inheritor Gap, and therefore, the interruption of the statute of limitations becomes effective when the plaintiff Gap submitted the original complaint

[1] Since a party to a lawsuit is directly connected to the issue of party capacity, standing to be a party, etc., the court which examines and determines the case shall, ex officio, confirm and proceed with the hearing by which the party to the lawsuit is a party. At this time, the court shall reasonably interpret and confirm the whole purport of the complaint, including the indication in the complaint and the details of and the cause for the claim, etc. In a case where the party’s ability is not recognized to be the defendant indicated in the complaint, it shall be allowed to correct the indication as the correct party capacity recognized as a result of a reasonable interpretation

[2] In a case where a guarantor Byung who subrogated for the debtor Gap's debt to the bank Eul, was aware of the debtor Gap's death and filed a lawsuit, the case affirming the judgment below that the debtor Gap's heir was the actual defendant and the guarantor Byung was able to correct the defendant's indication as the heir Gap, and therefore the interruption of the statute of limitations becomes effective at the time of the submission of the original complaint

[1] Articles 51 and 249 of the Civil Procedure Act / [2] Articles 51 and 249 of the Civil Procedure Act, Article 168 of the Civil Act

[1] Supreme Court Decision 99Du2017 decided Nov. 13, 2001 (Gong2002Sang, 63) Supreme Court Decision 2001Da83258 decided Mar. 29, 2002 (Gong2002Sang, 105)

Korea Housing Finance Corporation (Attorney Cho Young-il, Counsel for the defendant-appellant)

Defendant (Attorney Lee Dong-ho, Counsel for defendant-appellant)

Seoul Central District Court Decision 2010Na25543 Decided November 5, 2010

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. Since a party to a lawsuit is directly connected to the issue of party capacity, standing to be a party, etc., the court which has tried and tried the case shall, ex officio, confirm and proceed with the trial by which the party to the lawsuit is a party, and at this time, anyone who is the party must reasonably interpret and confirm the whole purport of the complaint, including the indication in the complaint and the details of and the cause for the claim. Therefore, in a case where the defendant, indicated in the complaint, is not recognized as a party capacity, correction of the indication is allowed as a party capacity recognized as a result of a reasonable interpretation of the whole purport of the complaint (see Supreme Court Decisions 9Du2017, Nov. 13, 2001; 2001Da83258, Mar. 29, 2002, etc.).

2. (1) According to the reasoning of the judgment below and the records, the plaintiff provided a credit guarantee for 60,00,000 won of the house purchase fund loaned by the non-party to the National Bank on December 30, 1999, with the guarantee period of 38,200,000 won, and the guarantee period of 30,200,000 won until December 30, 2002. ② The non-party provided a credit guarantee of 60,000 won from the National Bank under the above credit guarantee and did not repay the above principal and interest amount of 38,20,000,00 interest, 13,111 won, and 53,333,111,000 won, together with the non-party's family relation inquiry of the non-party's heir on January 3, 200, and the plaintiff submitted the non-party's family relation inquiry certificate of 209.

(2) In light of the legal principles as seen earlier, the content and underlying facts of the instant claim, the purpose of the Plaintiff’s filing of a lawsuit to substantially resolve the dispute through the relevant lawsuit, the fact that the heir filed an application for fact-finding after the filing of the lawsuit, and then filed an application for fact-finding, etc., the Defendant is the first deceased, not the Nonparty, who is the deceased, but the heir of the deceased, and the Defendant was the deceased, and the Plaintiff was erroneous in the indication of the complaint. Thus, the Plaintiff may correct the Defendant’s indication to the Nonparty’s heir, and accordingly, the interruption of the extinctive prescription becomes effective at the

(3) The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the correction of a party indication and the interruption of extinctive prescription.

3. Therefore, the appeal is 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 In-bok (Presiding Justice)