[1] In a case where a testamentary donee who has made a testamentary gift dies, whether he/she is obligated to succeed to his/her status in the lawsuit (=he/she is the inheritor) and whether a person who has received a testamentary gift may automatically succeed to the status

[2] In a case where a party died and the litigation procedure has not been interrupted due to a legal representative, whether the judgment, among co-inheritors of the deceased, indicating only a part of the parties undergoing the litigation procedure as a party, affects the remaining co-inheritors (affirmative)

[3] Whether the judgment becomes final and conclusive if the period of appeal elapses without filing an appeal against the legal representative of the deceased party (affirmative), and in a case where the legal representative of the deceased who has trusted the wrongful party indication and the other party whose mistake was entered is indicated as an appellant or appellee, and all of the legitimate inheritors who have succeeded to the status of the deceased in the lawsuit in the absence of the indication of the party (affirmative in principle), if the appeal is filed by indicating the erroneous party indication as an appellant or appellee, whether the appeal is filed against all the legitimate inheritors (affirmative in principle)

[4] The case reversing the judgment of the court of first instance which dismissed the request for resumption of a lawsuit filed by the above co-inheritors on the ground that the court of first instance against the co-inheritors who did not file a request for resumption at the court of first instance, although the appeal filed by the attorney of the deceased party during the continuation of the lawsuit at the court of first instance is deemed to have been brought against all co-inheritors of the deceased, who did not indicate it as a lawsuit receiver, and thus, the judgment of the court below which dismissed the request for resumption of lawsuit

[5] Whether it can be determined as a title trust on the ground that a parent has continuously exercised the right to manage and dispose of the property even after the parent transferred the name of the property to his/her own awareness (negative)

[1] In the case of a specific legacy which is merely a testamentary gift by which the testator specified a part of his/her property, not in the percentage of his/her property, but only a part of his/her property, the testamentary gift property is once inherited property and the person who takes the testamentary gift belongs to his/her heir, and the person who takes the testamentary gift is merely entitled to claim the testamentary gift to perform the testamentary gift against 10s. Therefore, if the testamentary donee dies, his/her legal status is naturally succeeded to the inheritor

[2] Where there is an attorney pursuant to subparagraph 1 of Article 95 and Article 238 of the Civil Procedure Act, the litigation procedure shall not be interrupted even if the party dies, and the attorney's power of attorney shall not be extinguished. In this case, the deceased's attorney shall be treated as the inheritor's attorney as a matter of law without any need to obtain a new authorization from the inheritor due to a party's ex officio succession. In a case where the party died but the party's attorney was deceased, and the litigation procedure is not interrupted, and even if the party's attorney was declared as a party without correcting the party's indication, the judgment's effect extends to all the inheritors who succeeded to the deceased's status in the litigation. Thus, the judgment indicating only a part of the deceased's co-inheritors who followed the litigation procedure as a party shall also affect the remaining co-inheritors who did not take over the judgment.

[3] In a case where a special authorization of the deceased’s legal representative is granted, the judgment shall be finalized if the period of appeal expires without filing an appeal, since the proceedings are not interrupted even if the judgment is served to him/her, and thus the period of appeal shall be passed without filing an appeal. However, it shall also be natural that the judgment is not finalized if the appeal is duly filed by the deceased’s legal representative, the heir, or the other party party. However, in a case where an appeal is filed by the deceased’s legal representative who has trusted the erroneous party indication as well as the other party’s legal representative who has trusted the wrongful party indication as to the judgment that has been effective to all legitimate successors who have succeeded to the status of the deceased, even though the party’s legal representative, or the other party’s legal representative who has relied on the wrongful party indication as the appellant or the appellee, barring any special circumstance,

[4] In a case where: (a) while the plaintiff died while the court of first instance, only the co-inheritors took over the procedure; and (b) the remaining co-inheritors did not file a request for taking over the deceased’s lawsuit; (c) the deceased’s legal representative, who was granted special authorization from the court of first instance, stated the appellant as “A,” and filed an appeal; and (d) Eul, etc. among the co-inheritors of the deceased during the court of first instance, filed a request for taking over the lawsuit, the court of first instance indicating only the deceased’s actual taking over procedure at the court of first instance as the assignee, regardless of the mistake of the party’s indication, shall have the effect of the first instance judgment’s request for taking over the deceased’s rights, and as long as the legal representative of the deceased, who trusted the erroneous party indication in the judgment of the court of first instance, was aware of the status of the deceased as the successor, and such request for taking over the lawsuit at the court of first instance shall be deemed to have been dismissed as the whole of the first instance judgment’s claim for taking over the lawsuit and its entire proceedings.

[5] In a case where the parents have transferred their properties to their own consciousness before their birth, it can often be said that the parents still exercise the right to manage and dispose of the pertinent properties under the self-support cooperation or consent. Thus, even after the parents transferred their names to their own consciousness and continued to exercise the right to manage and dispose of the said properties, it cannot be readily concluded that the title trust, not the donation, is a title trust.

[1] Article 1078 of the Civil Act, Article 233 of the Civil Procedure Act / [2] Article 95 subparag. 1, Articles 218, 233, and 238 of the Civil Procedure Act / [3] Articles 90(2)3, 95 subparag. 1, 218, 233, 238, 396, and 425 of the Civil Procedure Act / [4] Articles 90(2)3, 95 subparag. 1, 218, 233, 238, and 396 of the Civil Procedure Act / [5] Articles 103 and 54 of the Civil Act

[1] Supreme Court Decision 200Da73445 Decided May 27, 2003 (Gong2003Ha, 1419) / [2] Supreme Court Order 91Ma342 dated November 5, 1992 (Gong1993Sang, 66) / [2] Supreme Court Decision 94Da54160 Decided September 26, 1995 (Gong195Ha, 3519), Supreme Court Decision 94Da61649 Decided February 9, 196 (Gong196Sang, 888)

Plaintiff 1 and four others (Law Firm Barun, Attorneys Park Jae-sik et al., Counsel for the plaintiff-appellant) who are the deceased non-party 1's applicant for taking over the lawsuit and the deceased non-party 1's taking over the lawsuit

Defendant 1 and two others (Attorney Kang Jong-soo, Counsel for the defendant-appellant)

Busan High Court Decision 2005Na17334 decided Feb. 8, 2007

The part of the judgment of the court below that dismissed the plaintiffs' motion to resume a lawsuit on November 14, 2006 is reversed, and that part of the case is remanded to Busan High Court. The plaintiffs' remaining appeals are dismissed. The costs of appeal against the dismissed appeal are assessed against the plaintiffs.

1. Scope of adjudication in this Court, and location of the original judgment dismissing the motion to resume the lawsuit

According to the records, the court's scope of judgment in this case and the position of the court below's dismissal of the plaintiffs' motion to resume the lawsuit in this case is as follows

A. The plaintiff in this case is five and three defendants. The plaintiff 1, 2, 3, 4, 5 and the defendant 1, 2 are all children between the non-party 1 and the non-party 2. The defendant 3 is the defendant 2's wife.

B. Nonparty 1, who filed the instant lawsuit against the Defendants, died during the proceeding in the first instance trial. At the time, his heir was the wife Nonparty 2 and 7 children (the Plaintiff 5 and the Defendant 2), and the first instance trial lawsuit can be divided into the part (A) succeeded by Nonparty 2 and the part (B) succeeded by Nonparty 1 due to the death of Nonparty 1.

C. The part (A) to which Nonparty 2 succeeded to the status of Nonparty 1 as the plaintiff was succeeded by Nonparty 2 while the lawsuit was pending in the court of first instance. The part (A) to which Nonparty 2 succeeded to the status of Nonparty 1 as the plaintiff was again succeeded to seven children, who are co-inheritors. Since the part of the lawsuit succeeded by two Defendants (Defendant 1 and 2) was terminated automatically due to the extinguishment of the conflict between the parties, only the remaining (a) is within the scope of the court of first instance, except the part (A) whose legal proceedings were terminated automatically with respect to the part (A) to which the plaintiff succeeded to the status of Nonparty 2 as the plaintiff. More detailed parts (a) are divided into the part to which the plaintiffs succeeded, and each of the parts succeeded by Defendant 1 and 2, and the part (a) is divided into the remainder (a-aE) against each other except the part to which the plaintiffs succeeded to the status of the plaintiff, the scope of the judgment of the court of first instance is limited to the part (a) to which the plaintiffs succeeded to the above part (2).

D. The part (B) in which seven children succeed to Nonparty 1 is divided into the part (B) and the part (b) with the exception of the part (excluding the part (a) of which the lawsuit was terminated automatically and the part (b) among the lawsuits succeeded by Defendant 1 and 2. With respect to the part (b) above, the lower court rendered a judgment dismissing the Plaintiffs’ application for the taking-off of the lawsuit at the lower court on November 14, 2006 (hereinafter “the taking-off of the lawsuit in this case”), and the part (A) to which Nonparty 2 succeeded to Nonparty 1 or seven children succeeded to Nonparty 2 is clearly distinguishable from the part of the lower judgment dismissing the taking-off of the lawsuit in this case, which is not related to the taking-off of the lawsuit in this case.

2. As to the ground of appeal No. 1, 201

(a) The validity of the judgment where a mistake was made in the indication of parties as to a specific legacy and the deceased party’s legal status as the party’s party’s lawsuit, and the party’s successor;

In the case of a specific testamentary gift, which is merely a testamentary gift of which the testator specified a part of his/her own property or a part of the entire property, the property subject to the testamentary gift shall belong to his/her heir once as inherited property, and the person who takes the testamentary gift shall acquire claims to perform the testamentary gift against (see Supreme Court Decision 2000Da73445, May 27, 2003). In the case of a testamentary donee's death, his/her status in the lawsuit shall be succeeded automatically to his/her heir, and there is no room for a specific testamentary donee to succeed this. In addition, even if the parties die and there is an attorney pursuant to subparagraph 1 of Article 95 and Article 238 of the Civil Procedure Act, the proceedings shall not be suspended, and the attorney's power of attorney shall also be extinguished without being ordered to take part of his/her heir's status as a party, and even if the inheritor did not take part of his/her heir's status as a party to the lawsuit, it shall be 96.

According to the records, the non-party 1, after the institution of the lawsuit in this case, specified the whole rights, such as the right to claim ownership transfer registration, the right to claim cancellation registration, and the right to claim damages, which constitute the cause of the claim in this case, to the non-party 2, who is his wife on September 30, 202 (Evidence A No. 38) (hereinafter "the testamentary gift in this case"), and the non-party 1, who was in the process of the lawsuit in the first instance trial, had been in possession of the other property, and the non-party 1 (hereinafter "the deceased"), died on August 24, 2003, the non-party 2 and the non-party 7 children (the plaintiff 1, 2, 3, 4, 5, and 1 and 2), who had not been jointly inherited the deceased's property, and the non-party 2, who was delegated with the lawsuit in this case by the deceased, again received the consent of the plaintiff 1 and the non-party 2, his heir.

In light of the above facts in light of the legal principles as seen earlier, the legacy of this case falls under a specific legacy because Nonparty 2 was merely given a testamentary gift by specifying all or part of his property from the deceased, and since the testamentary gift of this case constitutes a specific testamentary gift, so long as the testamentary gift of this case falls under a specific testamentary gift, the status in the lawsuit of the deceased who died during the court of first instance shall be deemed to have been automatically succeeded to Nonparty 2 and the plaintiff 1, 2, 3, 4, 5, and 1, and 2, who are his children. In the first instance trial, only Nonparty 2 took the succession procedure, and only the other inheritor’s children did not file a request for succession, and even if the judgment of the court of first instance, even if the court of first instance, who was represented and served the judgment on behalf of the deceased, still held the status of the legal representative for the non-party 2 and the non-party 7, the inheritor’s heir’s share in the inheritance, the judgment shall be effective in accordance with the inheritance shares of the deceased.

The decision of the court below to the same purport is justified, and there is no error in the misapprehension of legal principles as to the succession to the status of a party. We cannot accept the argument in the grounds of appeal on this part.

B. Whether the judgment of the court of the first instance on the part (b) where the deceased’s children succeeded to the status of the deceased, and whether the judgment of the court below dismissing the motion to resume the lawsuit of this case is justifiable

According to the reasoning of the judgment of the court below, the court below held that the court below's judgment of the court of first instance did not appeal against the judgment even if the party's attorney was dead but the proceedings were not interrupted unless the heir took over even if the original copy of the judgment, which was the time limit for the existence of power of attorney, was delivered in accordance with the principle of representation in the court of instance. However, in the case where the legal representative is granted special power to file a lawsuit, the proceedings are not interrupted even after the service of the judgment to the legal representative, and the period for filing an appeal is not interrupted. Thus, if the period for filing an appeal expires without filing an appeal by the heir or the legal representative, the judgment becomes final and conclusive (see Supreme Court Order 91Ma342, Nov. 5, 192). The judgment of the court of first instance was delivered, and even if the legal representative of the deceased, who was the legal representative of the deceased, was granted special power to file an action in the form printed in the letter of delegation in the letter of delegation in the lawsuit, and the plaintiffs already filed the judgment.

However, this decision of the court below is not acceptable for the following reasons.

In a case where a judgment is given to the deceased’s legal representative, the proceedings are not interrupted even if the judgment is served, and the period of appeal is passed without filing a lawsuit. Thus, the judgment is finalized if the period of appeal expires without filing a lawsuit. However, it is natural that the judgment is not finalized if the appeal is duly filed by the deceased’s legal representative, heir, or other party. However, in a case where an appeal is filed with the deceased’s legal representative who has trusted the erroneous party indication or all legitimate inheritors who have succeeded to the status of the deceased’s legal representative despite the error of the party indication, and the other party’s legal representative who has trusted the erroneous party indication as the appellant or the party whose wrong party’s legal representative is indicated as the appellee, barring any special circumstances, it is reasonable to view that all legitimate inheritors have filed an appeal as to the whole of the judgment that takes effect

According to the records, the first instance court deemed that Nonparty 2 solely taken over the status of the deceased through a universal legacy, and rendered the judgment of the entire failure of the plaintiff by indicating only “Non-party 2, who is the deceased’s taking over lawsuit,” and on November 14, 2006, it can be seen that the plaintiffs, who are some co-inheritors of the deceased’s co-inheritors, succeeded to the status of the deceased’s lawsuit, were co-inheritors, who trusted the indication of the parties in the first instance judgment, filed a petition of appeal stating “Non-party 2, who is the deceased’s taking over the lawsuit,” and the Lee Young-young filed the appeal against the whole judgment against the plaintiff in the first instance court against which the deceased was the party, as indicated in the plaintiff’s first instance judgment.

In light of the above facts in light of the legal principles as seen earlier, the effect of the first instance judgment indicating only the non-party 2, who was actually taking over the procedure in the first instance court, as the plaintiff, rather than all the co-inheritors of the deceased, who are qualified for taking over the procedure in the first instance court, is against all the inheritors of the deceased, who are eligible for taking over the procedure in the first instance court, notwithstanding the mistake in indicating the party. In a case where the plaintiff, who trusted the erroneous indication of the deceased in the first instance judgment, is indicated as the appellant as it is and the plaintiff appealeds the entire appeal of this case against the judgment, the appeal of this case shall also be deemed to have been instituted against all the successors, who are not

Therefore, the final judgment of the first instance court was interrupted due to the appeal of this case, and the appellate procedure was initiated. However, with respect to all claims of the deceased other than the non-party 2 who already taken over at the first instance court, the litigation procedure was interrupted by Article 233 of the Civil Procedure Act, following the extinguishment of the attorney's right to attorney after the appeal of this case. Therefore, the lower court should have deliberated on the claim of this case by accepting the plaintiffs, who are the legitimate heir of the deceased.

Nevertheless, the court below erred by misapprehending that the judgment of the court of first instance on the validity scope of the appeal of this case had already become final and conclusive, thereby dismissing the plaintiffs' request for continuation of the lawsuit of this case. This part of the judgment of the court below cannot be maintained as it is, and the grounds of appeal pointing this out are with merit.

On the other hand, the Supreme Court Order 91Ma342 dated November 5, 1992 is related to the case in which some inheritors who actually take over the procedure of the first instance court among the inheritors who have automatically succeeded the status of the deceased party, filed an appeal against the judgment of the first instance, but they did not have any authority to act on behalf of the other inheritors who did not indicate the status of the deceased as the assignee, and the case is different from the case in which the attorney of the deceased who has the power of attorney on behalf of all the inheritors who have automatically succeeded the status of the deceased in the lawsuit, filed an appeal.

3. The legitimacy of the lower judgment as to the part (a) to which the Plaintiffs succeeded Nonparty 2 - As to the grounds of appeal Nos. 2 and 3

A. As to the second ground for appeal

According to the reasoning of the judgment below, the court below determined that the non-party 1 donated the real estate of this case to the defendants by taking into account the following circumstances: the non-party 1 purchased or newly built the real estate of this case in his own money; the non-party 1 had resided in the place and operated a sanction even after the transfer registration or preservation registration of ownership was made in the name of the defendants; and the taxes and public charges imposed on the real estate of this case were paid until the time the registration certificate of the real estate of this case was dead; and the funds necessary for the operation of the sanction were continuously used or profit-making of the real estate of this case, such as borrowing the real estate as security; however, the court below determined that the non-party 1 donated the real estate of this case to the defendants by taking into account the whole property management status of the non-party 1; the non-party 1's intention to pay the lawsuit in the process of related preservation litigation; the case where

If the parents leave their own properties before their birth to their own consciousness, the parents still exercise their right to manage and dispose of the properties in question under their own cooperation or consent even after they moved the name of the property to their own consciousness, so it cannot be readily concluded that it is a title trust, not a donation, just because they continued to exercise the right to manage and dispose of the properties even after the parents transferred the name of the property to their own consciousness. In light of the circumstances stated in the court below, the plaintiffs' assertion that the real property in this case was a title trust, and the judgment of the court below that the non-party 1 was to donate the real property in this case to the defendants is acceptable, and there is no illegality in the misapprehension of legal principles as to the interpretation of juristic acts or in the violation of the rules of evidence

B. Ground of appeal No. 3

The court below held that the issue of whether the possessor's possession is the owner's possession or the owner's possession without the intention of possession is not determined by the internal deliberation of the possessor, but by the nature of the title that caused the acquisition of possession, or by all circumstances related to the possession, and on the premise that the decision should be made externally and objectively. The court below determined that the non-party 1 acquired the real estate in this case and completed the registration of transfer of ownership or the registration of preservation of ownership in the future of the Defendants with the intent of donation to the Defendants, and the non-party 1 merely occupied it in the relation to the Defendants until his death. Thus, it is difficult to view it as the possession by the non-party 1 as

If Nonparty 1 is deemed to have donated the instant real estate as acknowledged by the lower court, the lower court’s determination that the possession by Nonparty 1 was not an independent possession is acceptable, and the lower court’s allegation in this part of the grounds of appeal on the ground that the lower court erred by misapprehending the legal doctrine on possession with a different factual basis is without merit.

4. Conclusion

Therefore, among the judgment of the court below, the part dismissing the plaintiffs' motion to resume the lawsuit of this case on November 14, 2006 is reversed, and that part of the case is remanded to the court below in the sense that the lawsuit of this case is pending in the court below. The remaining appeals by the plaintiffs are dismissed and the costs of appeal against the dismissed appeal are assessed against the plaintiffs. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Cha Han-sung (Presiding Justice)