[1] Whether the attorney's power of representation is subject to ex officio investigation at the stage of filing a lawsuit (affirmative)

[2] The burden of proof for the litigation requirement, which is a matter of ex officio investigation

[3] The case holding that the representation right is unlawful as a lawsuit filed by the defective representative

[1] The existence of attorney's power at the litigation stage is a matter of ex officio investigation by the court as a litigation requirement.

[2] The principle of burden of proof shall apply to a matter of ex officio, if the existence of the fact is unclear. In light of the fact that the subject matter of ex officio examination is in itself favorable to the plaintiff, the burden of proof for the elements of the lawsuit, which is the matter of ex officio

[3] The case holding that, in case where the plaintiff's location is proved to be unknown, the plaintiff's litigation was instituted by the plaintiff's attorney, the plaintiff did not take any measure during the litigation process, and the service was conducted by service by public notice, the plaintiff's attorney who filed the lawsuit under the plaintiff's name was not lawfully granted his power of attorney, and in such a case, the lawsuit should be dismissed as an illegal lawsuit filed by the plaintiff whose power of attorney was defective.

[1] Article 81 of the Civil Procedure Act / [2] Article 261 of the Civil Procedure Act / [3] Article 81 of the Civil Procedure Act

[1] Supreme Court Decision 77Da2139 delivered on February 14, 1978 (Gong1978, 10675) Supreme Court Decision 94Da31549 delivered on November 8, 1994 (Gong1994Ha, 3249)

Plaintiff

Defendant 1 and one other (Attorney Park Young-young, Counsel for the defendant-appellant)

Gwangju High Court Decision 94Na6832 delivered on July 26, 1996

The judgment of the court of first instance is reversed, and the judgment of the court of first instance is revoked. All costs of the lawsuit are assessed against the person who delegates the institution of the lawsuit to Nonparty 1.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below rejected the plaintiff's testimony of the non-party 4 of the court below, which corresponds to this, on the ground that the plaintiff's testimony of the non-party 4 of the court below is not trusted and there is no other evidence to prove otherwise, since the plaintiff's attorney in the court of first instance who filed the lawsuit of this case was not awarded the plaintiff's power of attorney, and was awarded the power of attorney from the non-party 2 and the non-party 3 who stolen the plaintiff's name.

However, the existence of power of attorney at the stage of filing a lawsuit is a matter of ex officio investigation by the court as a litigation requirement (see Supreme Court Decisions 77Da2139, Feb. 14, 1978; 94Da31549, Nov. 8, 1994; 94Da31549, Nov. 8, 1994; etc.). If the existence of such fact is unclear, the principle of burden of proof shall apply to the matter of ex officio investigation, and in light of the fact that it is favorable for the plaintiff to receive the judgment on the merits, the burden of proof for the litigation requirement,

However, according to the records, the plaintiff's letter of delegation of lawsuit submitted at the court of first instance is a private document that did not obtain authentication from a notary public, etc., and there is no evidence to acknowledge it as true. Thus, it cannot be deemed that the power of attorney was legitimately granted by only the power of attorney. Rather, the court below did not reject Gap evidence 12-12, 26 (each protocol of statement), Eul evidence 4-1 (No. 5-2), Eul evidence 5-1 (written evidence No. 5-2), 6 (written statement) of the court of first instance, and other facts that the plaintiff did not know about the plaintiff's resident registration at the court of first instance at the court of second instance at the court of second instance at the court of second instance at the court of second instance at the court of second instance at the court of first instance at the time of 9, 1975-197 and the defendant's previous statement at the court of first instance at the court of second instance at the 199, the plaintiff's 199, who was found to be the plaintiff's body of this case at 19.

Furthermore, according to the records, the lawsuit of this case was instituted by the plaintiff's attorney, and the judgment of the court of first instance on the provisional execution sentence of part of the plaintiff's winning judgment was rendered, and the defendant's objection, and the court of original judgment delivered a duplicate of the petition of appeal and a writ of summons of date for pleading, etc. to the plaintiff's address as stated in the complaint, but it is impossible to serve the plaintiff on the plaintiff for the reason that the addressee was unknown. Accordingly, all service on the plaintiff was made by service by public notice. The plaintiff did not appear at one time on the date for pleading

Therefore, the non-party 1, an attorney of the first instance court who filed the lawsuit in the name of the plaintiff, did not legally have been granted the power of attorney from the plaintiff. Thus, the lawsuit in this case shall be dismissed as an unlawful lawsuit filed by the attorney with the defect of power of attorney. Thus, the judgment of the court of first instance which partly accepted the plaintiff's claim as legitimate and dismissed the appeal by the defendants. It is erroneous in the misapprehension of legal principles as to the existence of power of attorney, which affected the conclusion of the judgment. Thus, the part pointing this out in the grounds of appeal is with merit.

2. Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the judgment of the court of first instance is revoked, and the lawsuit in this case is dismissed. According to the records, the non-party's name was delegated to the non-party 1, and the non-party 1 did not seem to have been grossly negligent with respect to the delegation of the lawsuit. Thus, the total costs of the lawsuit in this case are so decided as per Disposition by the assent of all participating Justices who reviewed the lawsuit at the expense of the delegated person to the non-party 1.

Justices Cho Chang-hun (Presiding Justice)