[1] Requirements for the selection of the selection party

[2] In a case where a person who has no common interest among the majority is selected as a designated party and claims are accepted, if the designated party voluntarily selected the act, whether the defect in the qualifications of the said designated party does not constitute grounds for retrial under Article 451(1)3 of the Civil Procedure Act (affirmative)

[1] A majority of the parties who have a common interest can select the designated parties. In this case, the common interest refers to the relationship between many parties as co-litigants and the main method of attack and defense, so that the majority's rights and obligations are the same kind of rights and obligations and the cause of the same relationship cannot be deemed as having a common interest, so the selection of the designated parties shall not be permitted.

[2] Where there is a relationship between many parties as co-litigants, but there is no common way of attack and defense, so the court's judgment becomes final and conclusive as a party because a person without a common interest was selected as a designated party, even though the person without a common interest was selected as a designated party, if the designated party voluntarily designated the party among the co-litigants in the lawsuit in question, he did not deprive the designated party of the opportunity to perform actual procedural acts or the opportunity to lawfully participate in the lawsuit. Thus, even if the designated party did not have a common interest with the designated party, such circumstance does not constitute grounds for retrial as stipulated in Article 451 (1) 3 of the Civil Procedure Act. This legal principle applies not only to the case where the judgment against the designated party becomes final and conclusive, but also to the case where the protocol of the appointment becomes final and conclusive by recognizing the claim of the designated party.

[1] Article 53 of the Civil Procedure Act / [2] Articles 53 and 451 (1) 3 of the Civil Procedure Act

[1] Supreme Court Decision 97Da362 delivered on July 25, 1997 (Gong1997Ha, 2678) / [2] Supreme Court Decision 92Da259 delivered on December 22, 1992 (Gong193Sang, 551)

Plaintiff clan (Attorney Kim Jong-soo et al., Counsel for plaintiff-appellant)

Defendant 1 and 18 others, the deceased non-party 1’s taking over the lawsuit (Law Firm Shin, Attorneys Shin Jae-ok et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2003Na61599 delivered on January 18, 2005

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

Many persons who have a common interest can select the designated parties. In this case, the common interest refers to the relationship between the many parties as co-litigants and the common method of attack and defense. As such, the majority's rights and obligations are the same kind of rights and obligations and the cause of the same relationship cannot be deemed to have a common interest, so the selection of the designated parties shall not be permitted (see Supreme Court Decision 97Da362 delivered on July 25, 1997, etc.).

However, in a case where a court's judgment became final and conclusive as a party because a person without a common interest was not a co-litigants because he was selected as a designated party because he did not common means of attack and defense, such circumstance constitutes "when there is any defect in granting authority of legal representation, powers of attorney, or authority necessary for the conduct of litigation" under Article 451 (1) 3 of the Civil Procedure Act, which is a ground for retrial under Article 451 (1) 3 of the Civil Procedure Act, the above ground for retrial should not be satisfied unless a unauthorized representative has actually conducted a procedural act on behalf of the principal or his legal representative could not perform a substantial procedural act due to a defect in power of attorney (see Supreme Court Decision 92Da259 delivered on December 22, 192, and where the appointed party was selected as a party to a lawsuit, such legal principle does not apply to the case where the appointed party did not have any substantial opportunity to recognize or recognize the opportunity to act as a party to the lawsuit, and even if the judgment did not have become final and conclusive.

According to the records, the claim for ownership transfer registration of Suwon District Court 89Gahap5730, which is the subject of the quasi-deliberation of this case, asserted that the plaintiff (the quasi-Appellant; hereinafter referred to as the "Plaintiff") made a title trust against the title holder on December 11, 1970 for the forest land (number 1 omitted) north-ri (hereinafter referred to as the "the forest land of this case") located in Yong-si, Young-si, and on January 21, 1971, the forest land of this case (number 2 omitted) was registered in the title holder on January 21, 197, and regarding the forest of this case, the non-party 1 and the non-party 2 [the non-party 3, the non-party 4, the non-party 19, and the non-party 5's heir of the non-party 13, the non-party 14, the non-party 15, 16, 17 and the non-party 2, the title holder of this case.

Based on such factual basis, the lower court determined that the part concerning the forest of this case among the cases subject to quasi-deliberation and the part concerning the forest of this case (number 2 omitted) constitutes grounds for retrial corresponding to the case where there is a defect in granting legal representation right, powers of attorney, or authority necessary for litigation, or authority necessary for litigation by a representative, on the ground that the part concerning forest of this case as to the co-defendant 6, who is one of the co-defendants as to the forest of this case, becomes the designated parties of the Defendants’ claim concerning the forest of this case, and the part concerning the forest of this case as to the forest of this case constitutes grounds for retrial, on the ground that there is a defect in granting legal representation right, powers of attorney, or authority necessary for litigation.

Examining the reasoning of the judgment below in light of the aforementioned legal principles, the judgment of the court below that there is a defect in the qualification as the appointed party because there is no joint interest between the appointed party Nonparty 6 and the Defendants as to the forest of this case is just (However, in determining whether a joint interest exists, it is not appropriate that the court below cited it as the ground for ownership dispute between the plaintiff clan and the non-party 7 clan member's clan in the case subject to quasi-deliberation, which was the circumstance that the court below did not have been discussed at all in the case subject to quasi-deliberation, as the ground for the ownership dispute between the plaintiff clan and the non-party 7 clan member's clan) at the time of this case where the defendants as to the forest of this case was selected as the appointed party as the above non-party 6, it is clear that the court below erred by misapprehending the legal principles as to the grounds for retrial under Article 451 (1) 3 of

Therefore, without examining the remaining grounds of appeal by the Plaintiff, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)