The legality of the appeal against the deceased person before the institution of the appeal

If it is recognized that the plaintiff had already died before the filing of the lawsuit, the judgment of the court below which accepted the plaintiff's claim should be null and void as a matter of course, or in light of the fact that the civil lawsuit is in the principal form of conflict between the parties, an appeal against the deceased person shall not be allowed. Therefore, the appeal filed against the deceased person as the other party is unlawful.

Articles 395 and 383 of the Civil Procedure Act

Supreme Court Decision 69Da929 delivered on March 24, 1970 (No. 189Da1741 delivered on February 9, 1971) (Gong53 delivered on October 12, 1982) 81Meu53 delivered on October 12, 1982 (Gong1982,1084)

Plaintiff

Daejeon Head of the tax office

Seoul High Court Decision 92Gu23225 delivered on March 18, 1993

The appeal shall be dismissed.

The costs of appeal are assessed against the defendant.

We examine the defendant's grounds of appeal ex officio before determining them.

According to the records, the plaintiff of this case is recognized as having already died before the institution of this case. If so, the judgment of the court below which accepted the plaintiff's claim will be null and void as a matter of course.

However, in light of the fact that a civil lawsuit is in the principal form of a conflict between the parties, an appeal filed against the deceased person shall not be permitted. Thus, the appeal of this case filed against the deceased person as the other party shall eventually be null and void (see, e.g., Supreme Court Decision 81Meu53, Oct. 12, 1982; Supreme Court Decision 69Da1741, Feb. 9, 1971; Supreme Court Decision 69Da929, Mar. 24, 1970).

Therefore, the appeal is dismissed and the costs of appeal are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-ju (Presiding Justice)