Effect of withdrawal of action by mistake (effective)

The withdrawal of a lawsuit by the plaintiff is the litigation for the plaintiff's court to extinguish the continuation of the lawsuit by withdrawing the lawsuit filed by the plaintiff, and the litigation procedure is no longer effective on the basis of its expression rather than that of the plaintiff's attorney's intention in general private law. Thus, the office clerk who is ordered to submit a resignation report by the plaintiff's attorney falls under the indication agency of the plaintiff's attorney and his mistake is deemed to be the error of the plaintiff's attorney. Thus, even if the office clerk's mistake withdrawss the lawsuit against the plaintiff's attorney's will

Article 109(1) of the Civil Act; Article 239 of the Civil Procedure Act

Supreme Court Decision 64Da92 Decided September 15, 1964 (No. 12-2, 98), Supreme Court Decision 80Da3251 Decided April 12, 1983 (Gong1983, 808), Supreme Court Decision 97Da6124 Decided June 27, 197 (Gong197Ha, 239)

Plaintiff (Attorney Park Hong-soo, Counsel for the plaintiff-appellant)

Defendant

Busan District Court Decision 94Na1941 delivered on January 25, 1995

The judgment of the court below is reversed. The lawsuit in this case was terminated by the withdrawal of the lawsuit on April 26, 1994. The litigation costs after the application for the designation of the date shall be borne by the plaintiff.

We examine the grounds of appeal ex officio prior to examining it.

According to the records, on January 21, 1994, the plaintiff conferred upon the non-party 1 the right of special acceptance of the lawsuit of this case along with the right of withdrawal of the lawsuit of this case. However, on April 26, 1994, the above non-party 1 attorney submitted a written withdrawal of the lawsuit of this case to the court below on the same day. The duplicate of the lawsuit of this case was served on the defendant's attorney on the same day. The defendant did not raise an objection to the above withdrawal within two weeks from the date he was served with a duplicate of the lawsuit of this case. The above non-party 1 attorney ordered the court below to submit the resignation system to the plaintiff's attorney on the 29th of the same month, and the clerk prepared and received the written withdrawal due to a serious error in the course of performing his duties, and thus, the above written withdrawal was naturally null and void, and the court below affirmed the decision of this case on January 25, 195, and dismissed the plaintiff's appeal of this case on behalf of the plaintiff 1.

However, the plaintiff's withdrawal of the lawsuit filed by the plaintiff and the continuation of the lawsuit is a litigation act against the plaintiff's court, and the validity of the lawsuit is determined on the basis of its expression rather than that of the plaintiff's intention in general private law. The clerk who received an order to submit a resignation statement from the plaintiff's attorney constitutes an indication institution of the plaintiff's attorney and his mistake is deemed to be the error of the plaintiff's attorney. Thus, even if the plaintiff's attorney withdraws the lawsuit of this case against the plaintiff's attorney's intention due to his mistake, it shall not be deemed null and void (see Supreme Court Decision 97Da6124 delivered on June 27, 197).

Thus, since the plaintiff's action against the plaintiff's attorney in this case is effective, the court below should have made a declaration of termination of the lawsuit, but the court conducted a hearing and made a decision on the merits. This is a crime of misunderstanding the legal principles on the validity of withdrawal of the lawsuit.

Therefore, without examining the grounds of appeal, the judgment of the court below is reversed, and it is sufficient to render a judgment as to the above facts, so it is decided as per Disposition by the assent of all participating Justices on the bench that the lawsuit in this case was terminated as the withdrawal of lawsuit by the plaintiff.

Justices Song Jin-hun (Presiding Justice)